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Home My WebLink AboutCity Council - 01/19/2016 AGENDA CITY COUNCIL WORKSHOP & OPEN PODIUM TUESDAY,JANUARY 19, 2016 CITY CENTER 5:00—6:25 PM, HERITAGE ROOMS 6:30—7:00 PM, COUNCIL CHAMBER CITY COUNCIL: Mayor Nancy Tyra-Lukens, Council Members Brad Aho, Sherry Butcher Wickstrom, Kathy Nelson, and Ron Case CITY STAFF: City Manager Rick Getschow, Police Chief Rob Reynolds, Fire Chief George Esbensen, Public Works Director Robert Ellis, Community Development Director Janet Jeremiah, Parks and Recreation Director Jay Lotthammer, Communications Manager Joyce Lorenz, City Attorney Ric Rosow, and Recorder Jan Curielli Workshop-Heritage Room II I. COMMISSION WORK PLANS A. CONSERVATION COMMISSION (5:30-5:40) B. FLYING CLOUD AIRPORT ADVISORY COMMISSION (5:40-5:50) C. HERITAGE PRESERVATION COMMISSION (5:50-6:00) D. HUMAN RIGHTS & DIVERSITY COMMISSION (6:00-6:10) E. PARKS,RECREATION & NATURAL RESOURCES COMMISSION (6:10- 6:20) F. PLANNING COMMISSION (6:20-6:30) Open Podium - Council Chamber II. OPEN PODIUM III. ADJOURNMENT Conservation Commission 2015 Accomplishments and 2016 Goals 2015 Accomplishments Helped the City provide input on the Green Step Cities Step 4 Pilot Program Provided education on sustainable practices at events including: Chamber of Commerce Home and Garden Expo were a G reenSte p City Arbor Day/Green Fair City Created a new educational water use graphic for display at future commission booths 2015 Accomplishments Provided recommendations on City initiatives and planning documents including: The successor program to the City's 20-40- 15 program Public engagement regarding ,0)10 ; �, .,, , ` , :ry landscape improvements to city4 . , . /ri,-, owned properties 10 AlVirdt The Local Water Management ! {: ,` i= : Plan update. The 2016 Education Plan for stormwater permit program. Native plantings, pollinator protection, organic recycling 2016 Goals Continue to support the City' s efforts through the 20-40- 15 Successor Program Provide recommendations on City initiatives including: The Local Water Management Plan Update and associated code updates The Sustainability chapter of the City's 1 Comprehensive Guide Plan The Sustainability section of the City's Design EDEN Standards Water Efficiency Grant PRAIRIE LIVE•WORK•DREAM 2016 Work with City Staff to develop ways to 4. expand use of the of the City's Environmental Learning Center r= Provide input on potential City pollinator protection initiatives Provide education to residents and businesses on sustainability practices at events including: Chamber of Commerce Home and Garden Expo Arbor Day/Green Fair Citywide Open House Continue development of educational outreach materials Conduct a joint meeting with the Parks and Natural Resources commission to discuss efforts relevant to both commissions Eden Prairie FLYING CLOUD AIRPORT WC i orkshop " ADVISORY COMMISSION January 19, 2016 GENERAL GOALS - CHARTER ■ Monitor the Final Agreement with MAC and advise the City Council and MAC with regard to matters affecting the operation of Flying Cloud Airport. Advise the City Council on changes to laws, rules, and regulations of federal and state agencies that affect the operation of the Airport and aeronautical activities within the City. Provide education and information about Flying Cloud Airport to various constituent groups and individuals, as well as continue to increase visibility of, and communications from , the Commission . - Work with the City and MAC to reduce nighttime noise and to improve the appearance of the airport . ■ Address any other matters as the City Council may direct from time to time. 2 GENERAL ACCOMPLISHMENTS ■ We were advised on operational changes at the airport, including a nationwide ban on Stage 2 jet aircraft , continuing hangar construction in the south hangar area , and reconstruction of Taxiway A . We encouraged the MAC to reach out to the households filing the most noise complaints to better understand why certain operations do or do not generate complaints, and to educate on what is and isn 't normal . We invited representatives from MnDOT Aeronautics to discuss regulatory and operational details of small Unmanned Aircraft Systems (sUAS), and implications for their operation within Eden Prairie. 3 SPECIFIC ACCOMPLISHMENTS FOR 2015 ■ Update the Commission and Flying Cloud Airport pages on the city website with relevant information for residents and airport users. Use web tools on a periodic basis to evaluate the site's usage and relevance to the viewing public. ■ Monthly reports show low but constant interest in the website. Old information has been removed, and other information consolidated. ■ Visit Flying Cloud Airport this Spring to meet with airport staff and Fixed Base Operators to learn of their concerns and ideas about activities at the airport, especially about reducing noise from airport operations. he Commission toured the airport in May, and visited the tower, MAC maintenance facility, two FBOs, and one flying club. Monitor the effectiveness of the revised Helicopter Letter of Agreement, and encourage the MAC to educate all helicopter operators of best practices for repeat operations. ■ Helicopter noise complaints were significantly reduced in 2015. The Commission will continue to monitor this issue during 2016 to validate long-term effectiveness of the LoA. 4 SPECIFIC ACCOMPLISHMENTS FOR 2015 ■ Invite the Operator of the Year Award winner to a Commission meeting to recognize an operator who follows the voluntary practices that contribute to noise abatement. ■ 2015 Operator of the Year will be awarded later in 2016. ■ Provide the Council with annual comparisons - month and year to prior month and year - of the number of operations and noise complaint information . ▪ Detailed data is included as an appendix to this presentation. 5 SPECIFIC GOALS FOR 2016 Monitor developments in changes to laws and regulations regarding Unmanned Aircraft Systems. Advise the Council of changes to the law that may affect the ability of residents and businesses to operate UAS Advise the Council of changes to the law that may affect the ability of the city to regulate these operations. ■ Visit Flying Cloud Airport to meet with airport staff and Fixed Base Operators to learn of their concerns and ideas about activities at the airport, especially about reducing noise from airport operations Provide the Council with annual comparisons - month and year to prior month and year - of the number of operations and noise complaints. Provide feedback to the MAC Noise Programs Office on revisions to the monthly noise complaint summary to use as a prototype for all MAC reliever airports ■ Monitor development of the MAC's 2035 LTCP for Flying Cloud Airport 6 2015 OPERATIONS SUMMARY • FAA operations data show across-the-board growth in aircraft movements, especially in VFR and local operations • Total airport operations1 increased to 87 , 069 (+ 18. 1%) Local flights increased by 8,757 (+32.3%) Transient VFR increased by 4,161 (+15.3%) IFR operations increased by 452 (+2.3%) Overall, FCM is 5th busiest airport in the region, and is the 2nd busiest MAC reliever airport by total airport operations FBO fuel flowage increased by 3 . 5% versus 2014 1,896,394 gallons dispensed in 12 months ending 10/31/2014 Substantial increases in both Jet A and avgas sales 7 1FAA tower counts; 12-month periods ending 11/30/2014 and 11/30/2015 2015 NOISE COMPLAINT SUMMARY - 3951 total noise complaints in 2015 , vs 5328 in 2014 ■ Year-over-year decrease of 26% ■ 65% of complaints came from one household 82% of complaints came from three households ■ Insignificant change in number of households filing complaints 2015: 73 locations; monthly average of 18 2014: 69 locations; monthly average of 19 ■ High density of complaints immediately west and east of airport mirrors prior years' complaint patterns. These are generally related to departures from the parallel runways. 8 2015 EDEN PRAIRIE COMPLAINT MAP 1 L7-41�__ _ - _ o • 1 I z . ® _ —.� • j—1 -eve e , I 0 : EL L �oo . no.s w.,m,.. o.a,s I FM e '41) --- - 611-11.1. 11 r--- 4�4 _=-- • Approximately 60 ,_ , Eden Prairie I ] __ Helicopter households filed ' -- • traffic noise complaints r P '�-, • • r pattern in 2015 • 1� • (north Most within 1.5 � � • 1A I parallel; miles of the I ��` �I airport east/west 13 households ' Typical Rwy 281L I;'� •• flow) in other locations also oti FR Departure4 i filed complaints; -.41111i \l, correlate to / these might not Flying Cloud Typical fixed wing VFR traffic Wpical Rwy 10R operations patterns (east/west flow) �r� IFR Departures i I I • I i ejm120160114 Miles Source:Metropolitan Airports Commission, Noise Program Office UAS LAW - JANUARY 2016 UPDATES ■ In October 2015, MnDOT Aeronautics provided guidance to the Commission that the FAA had been taking a relatively " hands off" approach to operations of noncommercial small Unmanned Aircraft Systems (sUAS). FAA's primary concern was avoiding conflict with manned aircraft Local rules / ordinances given blind eye ■ However, the FAA has recently asserted jurisdiction over operation of all aircraft, including sUAS. - Statutory authority: 49 U.S.C. §§ 40102-40103, 44502, and 44701-44735 - Small UAS registration and marking rule (14 CFR 48), 12/2015 Small UAS operational rules (Sec. 333 and 336 of PL 112-95; 14 CFR 107 final rule pending) ■ If FAA's position is upheld by the courts and not overridden by Congress, state and local governments will have little authority to regulate sUAS operations, including time-of-day or noise restrictions Refer to fact sheet from the FAA Office of the Chief Counsel 10 ADDITIONAL DATA AND Operations and Noise CHARTS Complaints 11 2011-2015 NOISE COMPLAINTS FCM Noise Complaints, 2011-2015 1000 — 900 800 700 600 H Q. 500 OlIlbIP0 400 ` 11111111 300 200 Air 100 - 0 I I January February March April May June July August September October November December 2011(Adjusted) 2012 2013 2014 2015 12 Data source:Metropolitan Airports Commission,Noise Program Office 2011-2015 HOUSEHOLDS WITH NOISE COMPLAINTS FCM Households, 2011-2015 60 50 40 H -a O m 30 --111114111 20 _i 10 0 January February March April May June July August September October November December 2011 2012 2013 2014 2015 13 Data source:Metropolitan Airports Commission,Noise Program Office FLYING CLOUt • PERATIONS 1990 -2015 300,000 co co O O 250,000 I. cfl (Ni Cy) ON 0 0 0 N 0 .06 O N 0 r-1 -I ) O (9 M co N N ,-I r-I T-1 •4 00 co O 00 N 00 N I`_ N O Ln O O N 0 0 (0 '-I 'I O Cfl LS) 200,000 °�° co N 00 0 N M cI c r-I 00 N 00 C La 0 150,000 co n N C 00 O co O QIII Cr N co 100,000 N o cc0 is) M N N III 50,000 0 00 Oti 0' (i0 cot)` 4° 00 0) Og 00 00 ON' 01' 05 Off` 0° OHO O\ Og 00 NS' yy N9' ?,'' N,` h ,yO N, N,,0 ,0 N, N,N0 ,yO ,yO ,yO ,0 r1,O r1O (1,0 r1,O r1,O �1, €1, �1,0 �1, r1O r1,O r1,O r1,O (1, €1, (Oti .IFR Itinerant VFR Itinerant Local Source:FAA Air Traffic Activity System(ATADS) *2015 data is twelve months ending 11/30/2015.All other years are reported ending 12/31. MONTHLY FLYh . ' ERATIONS mirm FCM Airport Operations (2010-2015) 17,000 16,000 15,000 14,000 c c 0 13,000 - 3 12,000 0 1- 11,000 y 10,000 � _ 0 � N N a N.N. 9,000 WAWA �� p 8,000 Alp 411110410K Q 7,000 MENadAlfr NIINquilli o 5,000 4111r,-111.1111111.? 4,000 3,000 2,000 Jan Feb Mar Apr May Jun Jul Aug Sep Oct Nov Dec +2010 f2011 f2012 2013 2014 12015 15 Source:FAA Air Traffic Activity System(ATADS) MONTHLY FLYING CLOUD IFR OPERATIONS FCM Airport IFR Operations (2010-2015) 2,50 2,300 2,100 g 1,900 v _� 1,700 o u- \\ill 1,500 c 0 1,300 0 �A� cc 1,100 900 700 500 Jan Feb Mar Apr May Jun Jul Aug Sep Oct Nov Dec 2010 2011 2012 -44-2013 -1-2014 0411•2015 16 Source:FAA Air Traffic Activity System(ATADS) FUEL FLOWAGE - 2013-2015 FCM Fuel Flowage: Jet-A 220,000 200,000 180,000 2 160,000 c 140,000 = 2013 (a cz 120,000 _ m_ m_ p . in 2014 .100,000 = . I I . . . . . ■ 2015 80,000 = 60,000 • • • • • • • Jan Feb Mar Apr May Jun Jul Aug Sep Oct Nov Dec Fuel Type 2014 2015 Change %Chg Month Jet-A 1,605,529 1,668,697 +63,168 +3.9% FCM Fuel Flowage: Avgas 40,000 Avgas 227,101 227,697 +596 +0.3% 35,000 30,000 — Total 1,832,630 1,896,394 +63,764 +3.5% c 25,000 2013 2 20,000 — LF 2014 0 15,000 — 10,000 2015 _ 5,000 0 Jan Feb Mar Apr May Jun Jul Aug Sep Oct Nov Dec 17 Source:Metropolitan Airports Commission Annual data represents 12 months ending 10/31/2014 and 10/31/2015. REGIONAL OPERATIONS COMPARISON - 2015 IFR VFR Total Pct Diff from Facilit Name State Itinerant Itinerant Local O.erations FCM MSP* Minneapolis/St Paul Intl Minneapolis MN 404,163 627 0 404,790 +365% ` GFK Grand Forks Intl Grand Forks ND 44,092 67,369 186,463 297,924 +242% • MKE Gen Mitchell Intl Milwaukee WI 108,003 3,077 544 111,624 +28% ANE* Anoka County-Blaine Blaine MN 14,009 30,246 44,215 88,470 +2% FCM* Flying Cloud Eden Prairie MN 19,755 31,415 35,899 87,069 0% MSN Dane County Regional Madison WI 46,195 17,633 14,494 78,322 -10% ANE DTP FAR Hector Intl Fargo ND 36,416 14,203 24,632 75,251 -14% MSP DSM Des Moines Intl Des Moines IA 55,805 8,962 4,614 69,381 -20% FCM FSD Joe Foss Field Sioux Falls SD 51,338 7,922 7,687 66,947 -23% ..- OSH Witmann Regional Oshkosh WI 4,892 34,999 25,896 65,787 -24% DLH Duluth Intl Duluth MN 23,294 16,982 19,869 60,145 -31% CD BIS Bismarck Municipal Bismarck ND 25,573 15,695 15,598 56,866 -35% STP* St.Paul Downtown St.Paul MN 19,158 16,725 20,762 56,645 -35% • ENW Kenosha Regional Kenosha WI 6,820 20,051 27,446 54,317 -38% DBQ Dubuque Regional Dubuque IA 7,655 16,458 27,806 51,919 -40% CID Eastern Iowa Cedar Rapids IA 33,539 8,382 7,803 49,724 -43% GRB Austin Straubel Intl Green Bay WI 26,272 9,104 11,608 46,984 -46% RAP Rapid City Regional Rapid City SD 22,058 11,630 9,057 42,745 -51% MIC* Crystal Crystal MN 3,382 19,439 16,597 39,418 -55% RST Rochester Intl Rochester MN 20,225 7,215 11,948 39,388 -55% UES Waukesha County Waukesha WI 6,566 17,817 10,360 34,743 -60% ATW Outagamie County Regional Appleton WI 18,990 8,510 6,309 33,809 -61% JVL Southern Wisconsin Regional Janesville WI 5,393 12,286 14,813 32,492 -63% MWC Timmerman Milwaukee WI 2,594 10,440 14,341 27,375 -69% STC St.Cloud Regional St.Cloud MN 4,188 11,727 11,086 27,001 -69% MOT Minot Intl Minot ND 12,720 6,500 6,583 25,803 -70% LSE La Crosse Municipal La Crosse WI 8,102 7,884 7,159 23,145 -73% EAU Chippewa Valley Regional Eau Claire WI 8,613 8,434 5,154 22,201 -75% ALO Waterloo Regional Waterloo IA 6,250 6,665 8,503 21,418 -75% SUX Sioux Gateway Sioux City IA 9,894 3,940 3,111 16,945 -81% CWA Central Wisconsin Mosinee WI 9,409 2,032 1,253 12,694 -85% Source:FAA Air Traffic Activity System(ATADS) 18 *MAC-owned airport Data for twelve months ending 11/30/2015 FAA DEFINITIONS Local operations: Operations performed by aircraft which : Operate in the local traffic pattern or within sight of the airport; Are known to be departing for, or arriving from flight in local practice areas located within a 20-mile radius of the airport; or Execute simulated instrument approaches or low passes at the airport . ■ Itinerant operations: All aircraft operations other than local operations Instrument flight rules (IFR): Rules governing the procedures for conducting flight under instrument meteorological conditions (IMC) instrument flight . ■ Visual flight rules (VFR): Rules that govern the procedures for conducting flight under visual conditions. Source:14 CFR§170.3(2/1/2013) 19 THANK YOU •• i . k • 20 Credit:Keith Tschohl,2012 2016 Flying Cloud Airport Advisory Commission Work Plan Eden Prairie City Council Workshop — January 19, 2016 Major Accomplishments for 2015 We were advised on operational changes at the airport, including a national ban on Stage 2 jet aircraft, continuing hangar construction in the south hangar area, and reconstruction of Taxiway A. We encouraged the MAC to reach out to the households filing the most noise complaints to better understand why certain operations do or do not generate complaints, and to educate on what is and isn't normal. We toured the airport in May, and visited the tower, MAC maintenance facility, two FBOs, and one flying club. We reviewed implementation of the Letter of Agreement (LoA) between the FAA and MAC to determine if it was effective in reducing noise caused by helicopter training operations. Noise complaints from these operations were significantly reduced, and discussions between the MAC and specific residents indicate that this issue has been resolved. The Commission will continue to monitor this issue during 2016 to validate long-term effectiveness of the LoA. We invited representatives from MnDOT Aeronautics to discuss regulatory and operational details of small Unmanned Aircraft Systems (sUAS), and implications for their operation within Eden Prairie. General Goals As mandated in our charter we will continue to monitor the Final Agreement with the MAC and advise the City Council and MAC with regard to matters affecting the operation of FCM. We will advise the City Council on changes to laws, rules, and regulations of federal and state agencies that affect the operation of the Airport and aeronautical activities within the City. We will continue our focus on providing education and information about Flying Cloud Airport to various constituent groups and individuals, as well as continue to increase visibility of, and communications from, the Commission. We plan to work with the City and MAC to reduce nighttime noise and to improve the appearance of the airport. We will address any other matters as the City Council may direct from time to time. Specific Goals for 2016 We will monitor developments in changes to laws and regulations regarding small Unmanned Aircraft Systems (sUAS). We will advise the Council of changes to the law that may affect the ability of residents and businesses to operate sUAS, and of the ability of the city to regulate these operations. We will visit Flying Cloud Airport to meet with airport staff and Fixed Base Operators to learn of their concerns and ideas about activities at the airport, especially about reducing noise from airport operations. We will provide the Council with annual comparisons— month and year to prior month and year- of the number of operations and noise complaints. We will provide feedback to the MAC Noise Programs Office on revisions to the monthly noise complaint summary to use as a prototype for all MAC reliever airports. We will monitor development of the MAC's 2035 LTCP for Flying Cloud Airport. State and Local Regulation of Unmanned Aircraft Systems (UAS) Fact Sheet Federal Aviation Administration Office of the Chief Counsel December 17, 2015 BACKGROUND Unmanned aircraft systems (UAS) are aircraft subject to regulation by the FAA to ensure safety of flight, and safety of people and property on the ground. States and local jurisdictions are increasingly exploring regulation of UAS or proceeding to enact legislation relating to UAS operations. In 2015, approximately 45 states have considered restrictions on UAS. In addition, public comments on the Federal Aviation Administration's (FAA)proposed rule, "Operation and Certification of Small Unmanned Aircraft Systems" (Docket No. FAA-2015-0150), expressed concern about the possible impact of state and local laws on UAS operations. Incidents involving unauthorized and unsafe use of small, remote-controlled aircraft have risen dramatically. Pilot reports of interactions with suspected unmanned aircraft have increased from 238 sightings in all of 2014 to 780 through August of this year. During this past summer, the presence of multiple UAS in the vicinity of wild fires in the western U.S. prompted firefighters to ground their aircraft on several occasions. This fact sheet is intended to provide basic information about the federal regulatory framework for use by states and localities when considering laws affecting UAS. State and local restrictions affecting UAS operations should be consistent with the extensive federal statutory and regulatory framework pertaining to control of the airspace, flight management and efficiency, air traffic control, aviation safety, navigational facilities, and the regulation of aircraft noise at its source. Presented below are general principles of federal law as they relate to aviation safety, and examples of state and local laws that should be carefully considered prior to any legislative action to ensure that they are consistent with applicable federal safety regulations. The FAA's Office of the Chief Counsel is available for consultation on specific questions. WHY THE FEDERAL FRAMEWORK Congress has vested the FAA with authority to regulate the areas of airspace use, management and efficiency, air traffic control, safety, navigational facilities, and aircraft noise at its source. 49 U.S.C. §§ 40103, 44502, and 44701-44735. Congress has directed the FAA to "develop plans and policy for the use of the navigable airspace and assign by regulation or order the use of the airspace necessary to ensure the safety of aircraft and the efficient use of airspace." 49 U.S.C. § 40103(b)(1). Congress has further directed the FAA to "prescribe air traffic regulations on the flight of aircraft (including regulations on safe altitudes)" for navigating,protecting, and identifying aircraft; protecting individuals and property on the ground; using the navigable 2 airspace efficiently; and preventing collision between aircraft,between aircraft and land or water vehicles, and between aircraft and airborne objects. 49 U.S.C. § 40103(b)(2). A consistent regulatory system for aircraft and use of airspace has the broader effect of ensuring the highest level of safety for all aviation operations. To ensure the maintenance of a safe and sound air transportation system and of navigable airspace free from inconsistent restrictions, FAA has regulatory authority over matters pertaining to aviation safety. REGULATING UAS OPERATIONS In § 333 of the FAA Modernization and Reform Act of 2012 (Public Law No. 112-95), Congress directed the Secretary to determine whether UAS operations posing the least amount of public risk and no threat to national security could safely be operated in the national airspace system (NAS) and if so, to establish requirements for the safe operation of these systems in the NAS. On February 15, 2015, the FAA proposed a framework of regulations that would allow routine commercial use of certain small UAS in today's aviation system,while maintaining flexibility to accommodate future technological innovations. The FAA's Notice of Proposed Rulemaking offered safety rules for small UAS (under 55 pounds) conducting non-recreational or non-hobby operations. The proposed rule defines permissible hours of flight, line-of-sight observation, altitude, operator certification, optional use of visual observers, aircraft registration and marking, and operational limits. Consistent with its statutory authority, the FAA is requiring Federal registration of UAS in order to operate a UAS. Registering UAS will help protect public safety in the air and on the ground, aid the FAA in the enforcement of safety-related requirements for the operation of UAS, and build a culture of accountability and responsibility among users operating in U.S. airspace. No state or local UAS registration law may relieve a UAS owner or operator from complying with the Federal UAS registration requirements. Because Federal registration is the exclusive means for registering UAS for purposes of operating an aircraft in navigable airspace, no state or local government may impose an additional registration requirement on the operation of UAS in navigable airspace without first obtaining FAA approval. Substantial air safety issues are raised when state or local governments attempt to regulate the operation or flight of aircraft. If one or two municipalities enacted ordinances regulating UAS in the navigable airspace and a significant number of municipalities followed suit, fractionalized control of the navigable airspace could result. In turn, this `patchwork quilt' of differing restrictions could severely limit the flexibility of FAA in controlling the airspace and flight patterns, and ensuring safety and an efficient air traffic flow. A navigable airspace free from inconsistent state and local restrictions is essential to the maintenance of a safe and sound air transportation system. See Montalvo v. Spirit Airlines, 508 F.3d 464 (9th Cir. 2007), and French v. Pan Am Express, Inc., 869 F.2d 1 (1st Cir. 1989); see also Arizona v. U.S., 567 U.S. , 132 S.Ct. 2492, 2502 (2012) ("Where Congress occupies an entire field . . . even complimentary state regulation is impermissible. Field preemption reflects a congressional decision to foreclose any 3 state regulation in the area, even if it is parallel to federal standards."), and Morales v. Trans World Airlines, Inc., 504 U.S. 374, 386-87 (1992). EXAMPLES OF STATE AND LOCAL LAWS FOR WHICH CONSULTATION WITH THE FAA IS RECOMMENDED • Operational UAS restrictions on flight altitude, flight paths; operational bans; any regulation of the navigable airspace. For example—a city ordinance banning anyone from operating UAS within the city limits, within the airspace of the city, or within certain distances of landmarks. Federal courts strictly scrutinize state and local regulation of overflight. City of Burbank v. Lockheed Air Terminal, 411 U.S. 624 (1973); Skysign International, Inc. v. City and County of Honolulu, 276 F.3d 1109, 1117 (9th Cir. 2002);American Airlines v. Town of Hempstead, 398 F.2d 369 (2d Cir. 1968);American Airlines v. City of Audubon Park, 407 F.2d 1306 (6th Cir. 1969). • Mandating equipment or training for UAS related to aviation safety such as geo-fencing would likely be preempted. Courts have found that state regulation pertaining to mandatory training and equipment requirements related to aviation safety is not consistent with the federal regulatory framework. Med-Trans Corp. v. Benton, 581 F. Supp. 2d 721, 740 (E.D.N.C. 2008);Air Evac EMS, Inc. v. Robinson, 486 F. Supp. 2d 713, 722 (M.D. Tenn. 2007). EXAMPLES OF STATE AND LOCAL LAWS WITHIN STATE AND LOCAL GOVERNMENT POLICE POWER Laws traditionally related to state and local police power—including land use, zoning,privacy, trespass, and law enforcement operations—generally are not subject to federal regulation. Skysign International, Inc. v. City and County of Honolulu, 276 F.3d 1109, 1115 (9th Cir. 2002). Examples include: • Requirement for police to obtain a warrant prior to using a UAS for surveillance. • Specifying that UAS may not be used for voyeurism. • Prohibitions on using UAS for hunting or fishing, or to interfere with or harass an individual who is hunting or fishing. • Prohibitions on attaching firearms or similar weapons to UAS. CONTACT INFORMATION FOR QUESTIONS The FAA's Office of the Chief Counsel is available to answer questions about the principles set forth in this fact sheet and to consult with you about the intersection of federal, state, and local regulation of aviation, generally, and UAS operations, specifically. You may contact the Office of Chief Counsel in Washington, D.C. or any of the following Regional Counsels: 4 FAA Office of the Chief Counsel Alaskan Region Regulations Division(AGC-200) Office of the Regional Counsel 800 Independence Ave. SW 222 West 7th Ave. Washington, DC 20591 Anchorage, AK 99513 (202) 267-3073 (909) 271-5269 (AK) Central Region Eastern Region Office of the Regional Counsel Office of the Regional Counsel 901 Locust St., Room 506 1 Aviation Plaza, Room 561 Kansas City, MO 61406-2641 Jamaica,NY 11434-4848 (816) 329-3760 (718) 553-3285 (IA, KS, MO,NE) (DC, DE, MD,NJ,NY, PA, VA, WV) Great Lakes Region New England Region Office of the Regional Counsel Office of the Regional Counsel O'Hare Lake Office Center 12 New England Executive Park 2300 East Devon Ave. Burlington, MA 01803 Des Plaines, IL 60018 (781) 238-7040 (847) 294-7313 (CT, ME, MA,NH, RI, VT) (IL, IN, MI, MN,ND, OH, SD, WI) Northwest Mountain Region Southern Region Office of the Regional Counsel Office of the Regional Counsel 1601 Lind Ave. SW 1701 Columbia Ave., Suite 530 Renton, WA 98055-4056 College Park, GA 30337 (425) 227-2007 (404) 305-5200 (CO, ID, MT, OR,UT, WA, WY) (AL, FL, GA, KY, MS,NC, SC, TN) Southwest Region Western-Pacific Region Office of the Regional Counsel, 6N-300 Office of the Regional Counsel 10101 Hillwood Parkway Dr. P.O. Box 92007 Fort Worth, TX 76177 Los Angeles, CA 90009 (817) 222-5099 (310) 725-7100 (AR, LA,NM, OK, TX) (AZ, CA, HI,NV) 5 APPENDIX—LIST OF AUTHORITIES Federal Statutes • 49 U.S.C. §§ 40103, 44502, and 44701- 44735 (former Federal Aviation Act of 1958, as amended and recodified). • FAA Modernization and Reform Act of 2012, Public Law No. 112-95 (Feb. 14, 2012), Subtitle B, "Unmanned Aircraft Systems." Federal Regulations • Title 14 of the Code of Federal Regulations, Chapter 1. The U.S. Supreme Court • "Congress has recognized the national responsibility for regulating air commerce. Federal control is intensive and exclusive. Planes do not wander about in the sky like vagrant clouds. They move only by federal permission, subject to federal inspection, in the hands of federally certified personnel and under an intricate system of federal commands. The moment a ship taxies onto a runway it is caught up in an elaborate and detailed system of controls. It takes off only by instruction from the control tower, it travels on prescribed beams, it may be diverted from its intended landing, and it obeys signals and orders. Its privileges, rights, and protection, so far as transit is concerned, it owes to the Federal Government alone and not to any state government."Northwest Airlines v. State of Minnesota, 322 U.S. 292, 303 (1944)(Jackson, R., concurring). • "If we were to uphold the Burbank ordinance [which placed an 11 p.m. to 7 a.m. curfew on jet flights from the Burbank Airport] and a significant number of municipalities followed suit, it is obvious that fractionalized control of the timing of takeoffs and landings would severely limit the flexibility of FAA in controlling air traffic flow. The difficulties of scheduling flights to avoid congestion and the concomitant decrease in safety would be compounded." Burbank v. Lockheed Air Terminal Inc., 411 U.S. 624, 639 (1973). • "The Federal Aviation Act requires a delicate balance between safety and efficiency, and the protection of persons on the ground ... The interdependence of these factors requires a uniform and exclusive system of federal regulation if the congressional objectives underlying the Federal Aviation Act are to be fulfilled."Burbank at 638-639. • "The paramount substantive concerns of Congress [in enacting the FAA Act] were to regulate federally all aspects of air safety ... and, once aircraft were in `flight,' airspace management...." Burbank at 644 (Rehnquist, J. dissenting). 6 U.S. Courts of Appeals • "Air traffic must be regulated at the national level. Without uniform equipment specifications, takeoff and landing rules, and safety standards, it would be impossible to operate a national air transportation system." Gustafson v. City of Lake Angeles, 76 F.3d 778, 792-793 (6th Cir. 1996)(Jones,N., concurring). • "The purpose, history, and language of the FAA [Act] lead us to conclude that Congress intended to have a single,uniform system for regulating aviation safety. The catalytic events leading to the enactment of the FAA [Act] helped generate this intent. The FAA [Act] was drafted in response to a series of fatal air crashes between civil and military aircraft operating under separate flight rules .... In discussing the impetus for the FAA [Act], the Supreme Court has also noted that regulating the aviation industry requires a delicate balance between safety and efficiency. It is precisely because of'the interdependence of these factors' that Congress enacted 'a uniform and exclusive system of federal regulation.' Montalvo v. Spirit Airlines, 508 F.3d 464, 471 (9th Cir. 2007), citing City of Burbank v. Lockheed Air Terminal Inc., 411 U.S. 624, 638-39 (1973). • "[W]hen we look to the historical impetus for the FAA, its legislative history, and the language of the [FAA] Act, it is clear that Congress intended to invest the Administrator of the Federal Aviation Administration with the authority to enact exclusive air safety standards. Moreover, the Administrator has chosen to exercise this authority by issuing such pervasive regulations that we can infer a preemptive intent to displace all state law on the subject of air safety."Montalvo at 472. • "We similarly hold that federal law occupies the entire field of aviation safety. Congress' intent to displace state law is implicit in the pervasiveness of the federal regulations, the dominance of the federal interest in this area, and the legislative goal of establishing a single, uniform system of control over air safety. This holding is fully consistent with our decision in Skysign International, Inc. v. Honolulu, 276 F.3d 1109 (9th Cir. 2002),where we considered whether federal law preempted state regulation of aerial advertising that was distracting and potentially dangerous to persons on the ground. In upholding the state regulations, we held that federal law has not `preempt[ed] altogether any state regulation purporting to reach into the navigable airspace.' Skysign at 1116. While Congress may not have acted to occupy exclusively all of air commerce, it has clearly indicated its intent to be the sole regulator of aviation safety. The FAA, together with federal air safety regulations, establish complete and thorough safety standards for interstate and international air transportation that are not subject to supplementation by, or variation among, states." Montalvo at 473-474. • "[W]e remark the Supreme Court's reasoning regarding the need for uniformity [concerning] the regulation of aviation noise, see City of Burbank v. Lockheed Air Terminal, 411 U.S. 624 (1973), and suggest that the same rationale applies here. In Burbank, the Court struck down a municipal anti-noise ordinance placing a curfew on jet flights from a regional airport. Citing the `pervasive nature of the scheme of federal 7 regulation,' the majority ruled that aircraft noise was wholly subject to federal hegemony, thereby preempting state or local enactments in the field. In our view, the pervasiveness of the federal web is as apparent in the matter of pilot qualification as in the matter of aircraft noise. If we upheld the Rhode Island statute as applied to airline pilots, 'and a significant number of[states] followed suit, it is obvious that fractionalized control ... would severely limit the flexibility of the F.A.A ....' [citing Burbank] Moreover, a patchwork of state laws in this airspace, some in conflict with each other, would create a crazyquilt effect ... The regulation of interstate flight-and flyers-must of necessity be monolithic. Its very nature permits no other conclusion. In the area of pilot fitness as in the area of aviation noise, the [FAA] Act as we read it `leave[s] no room for ... local controls.' [citing Burbank]. French v. Pan Am Express, Inc., 869 F.2d 1, 6 (1st Cir. 1989). Heritage Preservation Commission 2o15 Recap and 2o16 Work Plan City Council Workshop January 19, 2o16 Mission Stment The Heritage Preservation Commission (HPC) is the City's steward of Eden Prairie's enduring and recognized preservation policies. The programs and strategies focus not only on preservation, but also on education, public use and enjoyment of our heritage sites. Current Members Steve Olson, Chair Ed Mulhberg, Vice Chair Mark Freiberg Cindy Cofer-Evert Pamela Spera Paul Thorp Tara I<alar Lori Creamer, Staff Liaison Heidi Wojahn, Recording Secretary 2015 - Grants Received Eden Prairie Community Foundation $3,500 1 interpretive sign at Riley Lake Park Heritage Partnership Grant $ 6o,000 + $6,650 Collaboration between cities of Eden Prairie, Stillwater and Mankato to develop state wide training program Capital Grant $25,000 Smith Douglas More House roof project CLG Scholarship $1,200 State conference registration/lodging/travel for 3 participants Legacy Funds $14,000 Research and writing ii remaining interpretive signs at Riley Lake Park 2015 _ Inventory Work rY PIIIIIIIIIIIIj✓ 1� .n-i � R 1 } L ~ 'MVP tti � �� ' -,'�"'° r -- Projects201 - Co a orative CLG Grant Funds : Kiosk & 4 interpretive signs Parks & Recreation IIIIIIIIIkb ' ` ^g.. ice, , _ar. _ F i- weLcoME TO THE LAKE ��E , �_ "1°` RILEY LAKE PARK .,. IMF_ �+ ti i>_ s • +� ,. 1 J .,:-;;.,,4 , ii.tl! .. .ri, / 1 _ , ,.. . pit: ,,.70,,„,,, ' s I `� h _ ij , 4. ,it- ' "t .7.,E ze ki II go try_ p' • t . "E.'• - — a— -- --� _. --- • - - - _ s - - - - — i' " - - - 2015 — Collaborative Projects ,,,,,,,r ,,,,,,, . „,„..... , , ,, t = + 4 i t3fi , S oI ..A ,,. True Friends & I Parks & Recreation - z_ i'1 ,, .........------ ..... Glen Lake Children s -0114. ,FL ,7,/vftiir Camp play structure \\ , . _. _ _ - , Eden Prairie Community Foundation: 1 interpretive sign ZoiS -Collaborative Efforts Metropolitan Airports Commission (MAC) and Parks & Recreation Meetings regarding the Lookout Wayside site Tour historic hangars at Flying Cloud Airport Eden Prairie Historical Society and city facility staff City Center photo project Eden Prairie Historical Society and city public works staff Old street sign fundraiser 2015 Accomplishments Local Heritage Site Designation of i uthe Dorenkemper House ur 2 HPC members /1 staff attended Annual State Conference in Little Falls, MN Developed and implemented 1st Annual Preservation Month Award 2oi6 Work Plan Research on Town of Hennepin & Murphy's Ferry Continue collaborative efforts at Lookout site Research/apply for additional grant funding Complete City Center photo project National Register Site Designation-Smith Douglas More House and Dorenkemper Solicit nominations for Preservation Month Award Website enhancements Legacy funds interpretive signage research/writing C.O.A. Glen Lake Children's Camp Respite Center Questions / Conents Human Rights and Diversity Commission City Council Update 2016 Work plan Human Rights and DiversityCommissioners • PG Narayanan, Chairperson • Connie Iacovelli • Sandra Filardo • Tonja Bivins • Jenny Buckland • Greg Leeper • Sana Elassar • Patricia Fenrick, City Staff Student Commissioners Turner Gunderson Tala Alfoqaha Sarah Mason Adrienne Retzlaff Tanvi Mehta HRDC highlights from 2015 • Art exhibit "Tracks in the Snow" • Raised awareness of human rights issues through different community film events • Worked with Fire to initiate CSU-cultural Coffee with Council event services unit of CERT • 2nd Annual 5K run for justice • Community conversation, film and panel on youth homelessness • Letter of support with other neighboring cities for inclusive art in the Capitol • GLBT Ally training with PRIDE Institute • Formalized the Human Rights Grievance procedure 2016 Goals 1. Elevate the visibility of HRDC 2. Increase listening avenues within the community in order to better inform Council of successes, needs and issues. 3. Enlist the cooperation of organizations and individuals in the community to promote awareness and appreciation of promoting the City's Manifesto 20 1 6 initiatives ■ Annual Human Rights Award - Recognition of those working to promote the understanding and cooperation between people of different backgrounds ■ Community collaborative events - 5K Run for Justice, People Fest, Tapestry Project, Community Cinema ■ Updating HRDC brochure ■ Youth Commission led human rights concert ■ Advisory document that highlights the city's successes and challenges in the areas of civil, social, cultural and human rights Parks , Recreation and Natural Resources Commission — I 201 S Accomplishments 2016 Work Plan PRNR Work Plan Parks, Recreation and Natural Resources Commission 2015 Important Dates /Work Plan Day, Date Time I Location Group I Focus Monday, Jan 5 7 pm Council Chambers PRNR Meeting Budget Update, Cedar Hills Park Concept Design Plan,Facility Rentals Monday, Feb 2 7 pm Community Ctr PRNR Meeting SWLRT Station Area Planning,Work Plans, Aquatic Expansion Walk- through,2015 Park Projects Monday, Mar 2 7 pm Council Chambers PRNR Meeting New Registration Software,Dept Work Plan,EPCC Stalling,Cedar Hills Latest Design Winter Events Update,Park Division Overview,Cedar Hills Park Update, Monday, Apr 6 7 pm Council Chambers PRNR Meeting Software Update,Mobile Concessions,Mayor's Health&Wellness Committee Update and Fitness in the Parks PRNR&Heritage Outdoor Center Update,Carp Study Update,Interpretive Signage Buffing Monday,May 4 7 pm Outdoor Center Project,Outdoor Center Update, Staring Lake Carp Study,Riley Lake Preservation Meeting Park Update Wed., May 13 6 pm Garden Room Banquet Commission Members &Students Invited Monday, Juno 1 7 pm Council Chambers PRNR Mooting Meeting Canceled Monday, July 6 6:30 pm City Center PRNR Bus Tour Riley Lake Park,Franlo Park, Community Gardens Tues., July 21 6:30 pm Community Ctr Grand Opening Aquatics Upgrade Grand Opening Monday, Aug 3 7 pm Council Chambers PRNR Meeting Cedar Hills Park Update,Fall Brochure,Park Projects Updates,2016- 2017 Budget Overview Monday, Scpt 11 7 pm Park Maint. Bldg PPNR Meeting Meeting Canceled Monday, Oct 5 7 pm Park Maint. Bldg PRNR Meeting Bldg Tour,Welcome Students,Construction Update,Dryland Training Update,Fall into Fitness Recap,OC Master Plan Update Monday, Nov 2 7 pm Council Chambers PRNR Meeting Ice&Concessions Overview,Therapeutic Recreation Overview, Summer Programs Recap,Fitness in the Parks Recap,OC Master Plan Update Monday, Dec 7 7 pm Heritage Rooms PRNR Meeting Parks Zoning Ordinance(Regina),Facility Uses Policy Changes, Marketing Programs and Events :4 1 . .. ..4. .., I ....,' ,_ , • I i'f 4,1000., , , h r,lc .. 1 .1 /11101 , II.. 1. t s ' to I . ! 4 , , , , -. r . ._ _:.., _ ', ,, a. . ",- - ifili , -40,00101116.. i i -', Ik•- .7.\,\ -..,—,--.7- . 1111111111..15 APIA ► +.. .s ii_7_ s�'r.S .sr - ___ `ram . Mir I1 �_ ii ,\ 2015 Accomplishments Aquatics & Fitness ExpansionJect - Proj Provided input, attend events Studio C overlooking the pool j pr--.4 ----- 10.n. Illr , t-n- .r.: - • : 4 -_-- .N,ri _ . l/ 1 _-_-- . ‘.-- --- , .- - oole , II --- -- Vilir el, .- _ 2015 Accomplishments (---- ----- Outdoor Center Master Plan - On-site meetings, review and input into plan • MASTER PLAN 4- Staring Lake Legend: Exlain Cit !Jock Removable Barriers: 9 Y 0 WayRMing Slgnage Existing Enlstmg Building: Pollinator Garden Canoe Rack Animal Junction T H Identification/ _r ' Distance Markers Ewstiny budding Addition 'a' Foisting searing Pire Pit -Store, Education/Interpretive • Lake Outdoor Existing Staring _ * Signage Center ,. Roof Overhang1 iawtr Lake Observatoryy., - �_� far Outdoor Paved Trail ' Classroom 's Natural Nature Trail Play p.ea aw.+ r•, } �ssyr • : Concrete Pavement } ling Nodes? e N 1.iidx I Water Access 3. •,'- _ Pl.ri�ys y'' !Boardwalk 1 p. 1*E. - • Platform Raptor Food P p �S. &Outdoor Nen d s ram _ r� Lakeside • ?' . Boardwalk Removable Barrlir f 1 11�ig� d 1 Wildlife • - '' Trash Enclosure d Ped 1 4. / Fnd Photography and • Portable Toi,. / F L Cro g tit �,- :'y n t_,. r t ff fJ%/ . c a _ rtra+ `— 4$� Nat eaaaa ~ _ %F '+ A Lakeside r y! Public Art Nodes `M1 Searing take OuWoor �p1 Boardwalk Center Gateway Ike-. •Artistic/(M ' , ; 'a.r i a": � S a r4.11 _Nature Node: E , .warp` -- L II - � ,• v` ; .y Eastern ' Nature Tral Pedestr'sn Brags ;�..- _ _ • .,� Boardwalkiiii0e Fc S ng , �+p Paved Trailii, yy 4 WJl7 taL - �l — O DEN . � � �.�,.��.` �, .• • i , 'RAIRIE a.`.°a: ' :• ' - , - : ~ ',�1. e R 2015 Accomplishments (---- ----- Permanent Pickleball Courts - Part of tour, in put on layout Franlo Park rillimo • , r a { ;a „ , , , . ..JJ',JJ',0,t,, ,,'J's,''t'[.J.).',',.'.,''11',',',VA\,',V)',\'',',',)‘,',''',,4 k ,`'W,IiikeiVIWAVI - ' J j•i J ' J)) L _ ,c_,..ii.,,,,,!.4,.,,,:.,„..,„J.:,„:..,,,,,„,..,.,.., ,„„,„„„.,,,,„,,,,,..„,,,s„,,„2„,,,,,,„,.,),\,c.„:.:t.4,(,, , ., , .....,. , ,_, n; ,/) , _ ,i), ))) „,.. ,,..„.., ,,,, ,..., ,,, „„..,„,„„,„ ,• r \• o \ • 1.414,,,,LL , \ ''. ' ,,',,{ 'Ll 1, I,\•\'•` ,, \ \`\\` \ ' 4'" % i ✓ 1 )/ V L J )J1 1 JJ 1`''.', ;' \,' l ,t;•i•; tv: v t \ ✓ , / ✓✓ 2015 Accomplishments Fitness in the Parks - Staff reviewed and commission offered feedback _ Free Fitness offered variety of days and times • set. . • + r ti {k 2015 Accomplishments (---- --"- Variety in Meetings — Maintenance Facility tour, Community Center, Outdoor Center, Park Tour - ir- - ._, ., . .,ote. ... ...,. . .,, . _. ..‘_.::!4:::; .. ..„,,,,, - 'w.$111.-, -1 2• . , 4s"2t � 7 Joint Meetings, Bus Tour, '- Different Locations v YY _ - 1 - 00111k111II1111 � � 2015 Accomplishments ism . j f pw ��11 I. _ r ......i• . _ ....r. , 1111 Iliii& I"% " .,. POI. - ONO ,-.1.4/..,,,LIft--— iii I I Am — '" ...6. ',. -4. "' - . , -:;4:;71z- r;;,-..i."...IP'.As:r-.44.+.7:,......„):::`:::_"-.7,'.. i . . :' ,P..714ktS, • ,y y f s 1K-'1'-JAA 1 w 4 j11 tom- i±1 / Rai �'...• -...• ♦'SI` . ' . - yyw .. -r. _ �'' _ • 10 r 1st �. y. / ' .* rt y> ! 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Cedar Hills Park Construction - Construction & Grand Opening i ?),014 int 2016 Work Plan (---- ------ M N River Valley Vista - Review plans & provide design input LOOKOUT - ' 1 ' 1 I IFlying PARK Cloud Drive ` The existing site Imes-through the tunnel pose a safety WAYSIDE I of thek Fr futuredi bike retrcommeRnded along the util north signs of the F.C.drive is recommended along with caution signs •Plaza is located I warning bikeriof blind curves and intersections. in a manner that - 1 - - -- — -- , City of Eden Prairie, Minnesota allows visual - I — policing from the � -- --- - — — road" ._bettMoer end linesection-of pedestrianunderpass to allow for- _ `' better sight lines - _ Dashed painted centerline .- , , ` _ Concept 10 2 au with gg Po ntialluture Frail--- I ornamental safety barrier -- 1 - -- _ ifilaisonry-plaza_w. _ _—_ l - Ate:_ `,4` extension - - Stairs'With handrails crigt r 4-+ ---- Dn both_sides WIPAin� � t - \ r - • H.C.al-grade access - I \ N -_ _ _ • .• 0' 10' 20' 30' •—Viewshad Information -`�� _.�' T \\ \ panels and bino I Iars-_ T \ $tamped-andstained concrete\ GRAPH4C SCALE — — df- ftsEmmo y pavement with stone pattern — as \\ N. N. L. .— I Historic interpretive display \ anew&Assoc wrrs,Len. ` Retaining wal `1 \ \ \ \ wm L.ruwriwc MO DESIGN \ A �V— \ \ Protect#11-12 — �~ \ Date 5-27-11 , '�.- \- , , \ 2016 Work Plan r- --- SWLRT Station Area Planning - Review plans and public art .....,, ii ,, . .7, .. _...„,..„F, ''grF7' ....-" ..MT,' i ''.'.\ , ...\ -,____ .. ._._.,....._..,,,, ., \ J mil` - -��4,4.. J- --1 -1 `\ �\ `r V'I Gi S tom _ ' ` ,\" _i � P .:: --„` N f GT N • ?1 ." 47. 'Ep 17 :=1` J J ' ELI= \,1 O,- ` .,, \ $ 1,1,(, j / 1 11 '\ ,\ \.\ ,�/7,/// ', .';'.i. ..ty „ :' , r ---, _ _/ ill"I"' :2'4'7'' '111:'' . \ / r' IlLor----,..f/ AL:', rI 1 4, (';� ' , ,;, f, _ \_�-� ^ / 't_-�.--,-1 J' 2016 Work Plan " Did You Know? " Marketing • Exercise significantly reduces the chance for heart problems. Those who do not exercise are twice as likely to have coronary heart disease. l poatail 2016 Work Plan Green Team - Provided feedback and help launch program PAPER GLASS PLASTIC METAL 2016 Work Plan r -"-- Aquatics Upgrade Grand Opening _.........„„ ._ .__,,______ ..„,_ .... , � _ 4,z - f s � --- _ _ - ;;fi�rr ipo 11 r _= in liars. 1l�I�e r 1" • q t '- y y ; It 4 It 2016 Work Plan Questions? PLANNING COMMISSION WORK PLAN & ACCOMPLISHMENTS PLANNING COMMISSION CHARTER STATEMENT .T_ To provide for an open process and a balanced review of development proposals and land use requests , both private and public, with regard to the City ' s Strategic Plan , Comprehensive Guide Plan , and City land use . 2015 ACCOMPLISHMENTS Reviewed redevelopment and projects for Shops at Southwest Station and Eden Prairie Retail Reviewed an annexation request • Considered 7 variance applications • Reviewed 10 development land use applications 111 Newsome mo NE Iwo III !■11.11l11li — III 11 2015 ACCOMPLISHMENTS • Provided input on improved design standards & reviewed a text amendment allowing for streamlined review process for PUD & site plans Reviewed and provided input to the draft Transit Oriented Development (TOD) Ordinance and site improvements at Southwest Station If p al ; ,'w 1 r f' [ .. . t (h'I�i w 1 __ s - �, .ram 2016 WORK PLAN ■ Planning Commission historically has acted in its statutory capacity reviewing applications and initiatives as necessary. Work plan goals : • Build Commission knowledge to further optimize the planning process. Ensure strong coordination between the Commission and Eden Prairie strategic initiatives. 2016 WORK PLAN ■ 2016 work plan initiatives R..,.. `, {` 'i ..,k ,, Design Standards Discussions & Review ' . ', , , 114, ., lh 41 i, f r Ongoing Code Amendments F ,r �,, ; , ' ,. : Landscaping ;.., .,,.i•. ,, . ,',`, i. �. �.�, j� � r �,+.� , era• r Performance Standards °� '; ° � ' 1 ,'.44 ;t, ',, t .1.a ` r i r^ - • Clarification & Housekeeping Changes _ 1` Comprehensive Guide Plan Update ,.<, ,. . xr. . Questions/ Comments AGENDA EDEN PRAIRIE CITY COUNCIL MEETING TUESDAY,JANUARY 19, 2016 7:00 PM, CITY CENTER Council Chamber 8080 Mitchell Road CITY COUNCIL: Mayor Nancy Tyra-Lukens, Council Members Brad Aho, Sherry Butcher Wickstrom, Kathy Nelson, and Ron Case CITY STAFF: City Manager Rick Getschow, Public Works Director Robert Ellis, Community Development Director Janet Jeremiah, Parks and Recreation Director Jay Lotthammer, City Attorney Dan Gregerson and Council Recorder Jan Curielli I. CALL THE MEETING TO ORDER II. PLEDGE OF ALLEGIANCE III. COUNCIL FORUM INVITATION IV. PROCLAMATIONS/PRESENTATIONS A. DR. MARTIN LUTHER KING,JR., PROCLAMATION B. EDEN PRAIRIE SMILES DONATION (RESOLUTION) C. LIONESS CLUB DONATION (RESOLUTION) D. STATE FARM DONATION FROM GORDON WILLIAMS (RESOLUTION) V. APPROVAL OF AGENDA AND OTHER ITEMS OF BUSINESS VI. MINUTES A. COUNCIL WORKSHOP HELD TUESDAY, JANUARY 19, 2016 B. CITY COUNCIL MEETING HELD TUESDAY, JANUARY 19, 2016 VII. REPORTS OF ADVISORY BOARDS & COMMISSIONS VIII. CONSENT CALENDAR A. APPROVE PROFESSIONAL SERVICES AGREEMENT WITH WELSH ARCHITECTURE FOR THE PRELIMINARY POLICE SPACE STUDY CITY COUNCIL AGENDA January 19, 2016 Page 2 B. APPROVE PROFESSIONAL SERVICES AGREEMENT WITH KLM ENGINEERING, INC., FOR PROJECT ADMINISTRATION FOR RECOATING OF TOWN CENTER WATER TOWER C. APPROVE FIRST AMENDMENT TO COOPERATIVE AGREEMENT WITH THE CITY OF EDINA RELATING TO WATER, SANITARY AND STORM SEWER, STREET AND TRAFFIC SIGNALS D. ADOPT RESOLUTION AMENDING RESOLUTION 2016-09 SETTING 2016 MEETING DATES FOR BOARDS AND COMMISSIONS E. APPROVING 5TH RESTATED JOINT POWERS AGREEMENT OF SOUTHWEST TRANSIT COMMISSION F. APPOINT REPRESENTATIVE AND ALTERNATE TO LOGIS BOARD OF DIRECTORS G. APPROVE SPRINT LICENSE AGREEMENT EXTENSION LETTER IX. PUBLIC HEARINGS/MEETINGS A. KAL POINT by Kal Stay, LLC.Request for Guide Plan Change from Neighborhood Commercial to Community Commercial on 2.98 acres; Planned Unit Development Concept Review on 2.98 acres; Planned Unit Development District Review with waivers on 2.98 acres; Zoning District Change from Neighborhood Commercial to Community Commercial on 2.98 acres; Site Plan Review on 2.98 acres and Preliminary Plat of three lots into two lots on 2.98 acres. Location: 13105, 13075 & 13045 Pioneer trail. (Resolution for Guide Plan Change; Resolution for PUD Concept review; Ordinance for PUD District Review with waivers and Zoning District Change; Resolution for Preliminary Plat) B. COMPETITIVE FRANCHISE AGREEMENT WITH QWEST BROADBAND SERVICES,INC.D/B/A CENTURY LINK (FIRST READING OF ORDINANCE) C. VACATION OF PART OF THE SLOPE EASEMENT (FLYING CLOUD DRIVE -METCOM) (RESOLUTION) X. PAYMENT OF CLAIMS XI. ORDINANCES AND RESOLUTIONS XII. PETITIONS, REQUESTS AND COMMUNICATIONS XIII. APPOINTMENTS A. BOARD OF APPEAL & EQUALIZATION CITY COUNCIL AGENDA January 19, 2016 Page 3 XIV. REPORTS A. REPORTS OF COUNCIL MEMBERS B. REPORT OF CITY MANAGER C. REPORT OF THE COMMUNITY DEVELOPMENT DIRECTOR D. REPORT OF PARKS AND RECREATION DIRECTOR E. REPORT OF PUBLIC WORKS DIRECTOR F. REPORT OF POLICE CHIEF G. REPORT OF FIRE CHIEF H. REPORT OF CITY ATTORNEY XV. OTHER BUSINESS XVI. ADJOURNMENT ANNOTATED AGENDA DATE: January 19, 2016 TO: Mayor and City Council FROM: Rick Getschow, City Manager RE: City Council Meeting for Tuesday, January 19, 2016 TUESDAY,JANUARY 19,2016 7:00 PM, COUNCIL CHAMBER I. CALL THE MEETING TO ORDER II. COLOR GUARD/PLEDGE OF ALLEGIANCE III. OPEN PODIUM INVITATION Open Podium is an opportunity for Eden Prairie residents to address the City Council on issues related to Eden Prairie city government before each Council meeting, typically the first and third Tuesday of each month, from 6:30 to 6:55 p.m. in the Council Chamber. If you wish to speak at Open Podium, please contact the City Manager's office at 952.949.8412 by noon of the meeting date with your name,phone number and subject matter. If time permits after scheduled speakers are finished, the Mayor will open the floor to unscheduled speakers. Open Podium is not recorded or televised. If you have questions about Open Podium, please contact the City Manager's Office. COUNCIL MEETING IV. PROCLAMATIONS/PRESENTATIONS A. DR. MARTIN LUTHER KING,JR., PROCLAMATION • The Mayor will read the proclamation. • PG Narayanan, Chair of the Human Rights &Diversity Commission will announce the opening of the application process for the Human Rights Awards. B. EDEN PRAIRIE SMILES DONATION (RESOLUTION) Synopsis: Eden Prairie Smiles will donate to the following programs for a total of$5,000: • Arts in the Park • Hometown Celebration July 3rd and 4th • Starring at Staring Concert Series • KidStock Concert Series • Halloween on the Mall MOTION: Move to adopt the resolution accepting the donation from Eden Prairie Smiles for$5,000 for Parks and Recreation special events. ANNOTATED AGENDA January 19, 2016 Page 2 C. LIONESS CLUB DONATION (RESOLUTION) Synopsis: The Senior Center offers a variety of social events, physical fitness classes, education sessions and rentals in the community room at the Senior Center. This new sound equipment provides ample amount of sound throughout the room, no matter where you are seated. MOTION: Move to adopt the Resolution accepting the donation in the amount of $600 from the Eden Prairie Lioness Club for the purchase of new sound equipment at the Eden Prairie Senior Center. D. STATE FARM DONATION FROM GORDON WILLIAMS (RESOLUTION) Synopsis: The Senior Center provides a wide variety of social, recreational and educational opportunities for adults and seniors, including special events, educational classes, trips and social activities. Gordon Williams serves on the Senior Center Advisory Council. He is also an active Senior Center volunteer and participates in various programs and activities, including trips and special events. The State Farm Companies Foundation Good Neighbor Grant Program; Matching Gift Program gives out matching monies, matching the amount of volunteer hours an individual submits to their volunteer location. Gordon Williams submitted volunteer hours to State Farm Companies in the amount that qualified his volunteer service hours for the donation of$500 to be used towards the annual Senior Center volunteer recognition event in April, 2016 as requested by Gordon Williams. MOTION: Move to adopt the resolution accepting the donation in the amount of $500 from State Farm Companies Foundation on behalf of Gordon Williams for his volunteer service at the Eden Prairie Senior Center to be used toward the 2016 Senior Center volunteer recognition event. V. APPROVAL OF AGENDA AND OTHER ITEMS OF BUSINESS MOTION: Move to approve the agenda. VI. MINUTES MOTION: Move to approve the following City Council minutes: A. COUNCIL WORKSHOP HELD TUESDAY, JANUARY 5, 2015 B. CITY COUNCIL MEETING HELD TUESDAY, JANUARY 5, 2015 VII. REPORTS OF ADVISORY BOARDS & COMMISSIONS ANNOTATED AGENDA January 19, 2016 Page 3 VIII. CONSENT CALENDAR MOTION: Move approval of items A-G on the Consent Calendar. A. APPROVE PROFESSIONAL SERVICES AGREEMENT WITH WELSH ARCHITECTURE FOR THE PRELIMINARY POLICE SPACE STUDY B. APPROVE PROFESSIONAL SERVICES AGREEMENT WITH KLM ENGINEERING, INC., FOR PROJECT ADMINISTRATION FOR RECOATING OF TOWN CENTER WATER TOWER C. APPROVE FIRST AMENDMENT TO COOPERATIVE AGREEMENT WITH THE CITY OF EDINA RELATING TO WATER, SANITARY AND STORM SEWER, STREET AND TRAFFIC SIGNALS D. ADOPT RESOLUTION AMENDING RESOLUTION 2016-09 SETTING 2016 MEETING DATES FOR BOARDS AND COMMISSIONS E. APPROVING 5TH RESTATED JOINT POWERS AGREEMENT OF SOUTHWEST TRANSIT COMMISSION F. APPOINT REPRESENTATIVE AND ALTERNATE TO LOGIS BOARD OF DIRECTORS G. APPROVE SPRINT LEASE EXTENSION IX. PUBLIC HEARINGS/MEETINGS A. KAL POINT by Kal Stay, LLC.Request for Guide Plan Change from Neighborhood Commercial to Community Commercial on 2.98 acres; Planned Unit Development Concept Review on 2.98 acres; Planned Unit Development District Review with waivers on 2.98 acres; Zoning District Change from Neighborhood Commercial to Community Commercial on 2.98 acres; Site Plan Review on 2.98 acres and Preliminary Plat of three lots into two lots on 2.98 acres. Location: 13105, 13075 & 13045 Pioneer trail. (Resolution for Guide Plan Change; Resolution for PUD Concept review; Ordinance for PUD District Review with waivers and Zoning District Change; Resolution for Preliminary Plat) Synopsis: The proposed project is for the construction of a 20,000 square foot grocery building with a drive through and a multi-tenant retail building of approximately 4,200 square feet. The proposal includes the removal of the existing structures and redeveloping the existing 3 parcels into 2 parcels with shared parking facilities. The proponent is seeking rezoning from Neighborhood Commercial to Community Commercial, as well as, PUD waivers to the parking setback along the common property line and for Floor Area Ration (FAR) and Base Area Ratio (BAR) for Lot 2. ANNOTATED AGENDA January 19, 2016 Page 4 MOTION: Move to: • Close the Public Hearing; and • Adopt the Resolution for Guide Plan Change from Neighborhood Commercial to Community Commercial on 2.98 acres • Adopt the Resolution for Planned Unit Development Concept Review on 2.98 acres; and • Approve 1st Reading of the Ordinance for Planned Unit Development District Review with waivers, and Zoning District Change from Neighborhood Commercial to Community Commercial 2.98 acres; and • Adopt the Resolution for Preliminary Plat for 3 lots into 2 lots on 2.98 acres; and • Direct Staff to prepare a Development Agreement incorporating Staff and Commission recommendations and Council conditions. B. COMPETITIVE FRANCHISE AGREEMENT WITH QWEST BROADBAND SERVICES,INC.D/B/A CENTURY LINK (FIRST READING OF ORDINANCE) Synopsis: The City of Eden Prairie has been asked to grant a cable television franchise agreement to CenturyLink. The City Council may grant this request if it finds that the applicant is capable of providing cable television services and if the applicant agrees to provide said services under the same terms and conditions as other cable television franchise holders in our city. The only other cable television franchise holder in Eden Prairie is Comcast. Our City is a member of the Southwest Cable Commission. The other member cities of the commission are Edina, Richfield, Minnetonka, and Hopkins. The Commission exists to advise its member cities on cable television matters. The Commission considered the CenturyLink request earlier this year. They then voted unanimously at their October 22 Board meeting to recommend that its member cities approve the CenturyLink franchise request. At the January 19 City Council meeting, Brian Grogan, legal counsel and administrator of the SW Cable Commission, will guide the City Council through a public hearing on the franchise request and advise the Council on the matter. MOTION: Move to: • Close the Public Hearing; and • Approve first reading of an ordinance granting a cable television franchise to Century Link. C. VACATION OF PART OF THE SLOPE EASEMENT (FLYING CLOUD DRIVE -METCOM) (RESOLUTION) ANNOTATED AGENDA January 19, 2016 Page 5 Synopsis: The owners of the Park Nicollet Clinic requested the vacation of a part of the slope easement over a portion of the Clinic lot to accommodate an addition to their existing building. MOTION: Move to: • Close the public hearing; and • Adopt the resolution vacating of a part of the slope easement, as dedicated on Torrens Document 1208598 dated December 6, 1976 and recorded on February 8, 1977 with the Hennepin County Registrar of Titles, lying over a part of Tract A, Registered Land Survey No. 1394, Hennepin County, Minnesota. X. PAYMENT OF CLAIMS MOTION: Move approval of Payment of Claims as submitted (Roll Call Vote). XI. ORDINANCES AND RESOLUTIONS XII. PETITIONS, REQUESTS AND COMMUNICATIONS XIII. APPOINTMENTS A. BOARD OF APPEAL & EQUALIZATION Synopsis: The proposed members for Council approval are Eden Prairie residents and experienced real estate professionals with extensive knowledge of the Southwest metro area. Lyndon Moquist of Edina Realty is involved in the sale of residential properties in the southwest metro area and manages the Eden Prairie office of Edina Realty. Annette O'Connor of Coldwell Banker Burnet Realty is involved in the sale of residential properties in the southwest metro. Todd Walker of Coldwell Banker Burnet Realty is involved in the sale of residential properties in the southwest metro. Nate Thompson of Edina Realty is involved in the sale of residential properties in the southwest metro. Kristin Rial of Edina Realty is involved in the sale of residential properties in the southwest metro. MOTION: Move to appoint to the Board of Appeal and Equalization: Lyndon Moquist,Annette O'Connor, Todd L. Walker,Nate Thompson and Kristin Rial for the period of March 1, 2016 through May 31, 2016, or until the Board of Appeal and Equalization completes its work. XIV. REPORTS ANNOTATED AGENDA January 19, 2016 Page 6 A. REPORTS OF COUNCIL MEMBERS B. REPORT OF CITY MANAGER C. REPORT OF THE COMMUNITY DEVELOPMENT DIRECTOR D. REPORT OF PARKS AND RECREATION DIRECTOR E. REPORT OF PUBLIC WORKS DIRECTOR F. REPORT OF POLICE CHIEF G. REPORT OF FIRE CHIEF H. REPORT OF CITY ATTORNEY XV. OTHER BUSINESS XVII. ADJOURNMENT MOTION: Move to adjourn the City Council meeting. ITEM NO.: IV.A. PROCLAMATION City of Eden Prairie Hennepin County, Minnesota WHEREAS, the City of Eden Prairie's City Council and Human Rights & Diversity Commission sponsors the Human Rights Award program, recognizing those who work to create an inclusive community spirit through their actions, activities, and programs; and WHEREAS, the City of Eden Prairie recognizes that Dr. Martin Luther King, Jr., had a dream and dedicated his life to helping freedom exist for all people through his commitment to human rights and his non- violent philosophy; and WHEREAS, the City of Eden Prairie reaffirms its commitment to fostering diversity in our community through the Eden Prairie Manifesto. NOW, THEREFORE, be it resolved, that the City of Eden Prairie hereby proclaims 2016 as a year to celebrate human rights and diversity, and asks all residents to continue their commitment and concern for equal rights for all persons, to dedicate themselves to helping those who do not yet share in that freedom, and to join the City of Eden Prairie in recognizing and celebrating Dr. Martin Luther King, Jr.'s dream. */e,...,,,.... Nanc ra-Lukens, Mayor Y Y City of Eden Prairie CITY COUNCIL AGENDA DATE: SECTION: Proclamations and Presentations January 19, 2016 DEPARTMENT/DIVISION: ITEM DESCRIPTION: ITEM NO.: Jay Lotthammer, Director, Donation from Eden Prairie Smiles for Parks IV.B. Parks and Recreation and Recreation Special Events Requested Action Move to: Adopt the resolution accepting the donation from Eden Prairie Smiles for$5,000 for Parks and Recreation special events. Synopsis Eden Prairie Smiles will donate to the following programs for a total of$5,000: • Arts in the Park • Hometown Celebration July 3rd and 4th • Starring at Staring Concert Series • KidStock Concert Series • Halloween on the Mall Eden Prairie Smiles will be recognized as a Platinum sponsor for each of these events. Attachment Resolution CITY OF EDEN PRAIRIE HENNEPIN COUNTY, MINNESOTA RESOLUTION NO. 2016- RESOLUTION RELATING TO ACCEPTANCE OF GIFTS BE IT RESOLVED BY THE EDEN PRAIRIE CITY COUNCIL THAT: The gift to the City in the amount of $5,000 to be used for Parks and Recreation Special Events from Eden Prairie Smiles is hereby recognized and accepted by the Eden Prairie City Council. Eden Prairie Smiles will donate to the following programs for a total of$5,000: Arts in the Park Hometown Celebration July 3rd and 4th Starring at Staring Concert Series KidStock Concert Series Halloween on the Mall ADOPTED by the City Council of the City of Eden Prairie this 19th day of January, 2016. Nancy Tyra-Lukens, Mayor ATTEST: Kathleen Porta, City Clerk CITY COUNCIL AGENDA DATE: SECTION: Proclamations and Presentations January 19, 2016 DEPARTMENT/DIVISION: ITEM DESCRIPTION: ITEM NO.: Jay Lotthammer, Director, Donation from Eden Prairie Lioness Club for IV. C. Parks and Recreation New Sound Equipment at the Eden Prairie Senior Center Requested Action Move to: Adopt the Resolution accepting the donation in the amount of$600 from the Eden Prairie Lioness Club for the purchase of new sound equipment at the Eden Prairie Senior Center. Synopsis The Senior Center offers a variety of social events, physical fitness classes, education sessions and rentals in the community room at the Senior Center. This new sound equipment provides ample amount of sound throughout the room, no matter where you are seated. Background The City of Eden Prairie's Senior Center offers a wide range of activities for senior citizens and for residents of all ages. Attachment Resolution CITY OF EDEN PRAIRIE HENNEPIN COUNTY, MINNESOTA RESOLUTION NO. 2016- RESOLUTION RELATING TO ACCEPTANCE OF GIFTS BE IT RESOLVED BY THE EDEN PRAIRIE CITY COUNCIL THAT: The gift to the City in the amount of$600 to be used for the purchase of sound equipment for the Eden Prairie Senior Center community room from Eden Prairie Lioness Club is hereby recognized and accepted by the Eden Prairie City Council. ADOPTED by the City Council of the City of Eden Prairie this 19th day of January, 2016. Nancy Tyra-Lukens, Mayor ATTEST: Kathleen Porta, City Clerk CITY COUNCIL AGENDA DATE: SECTION: Proclamations and Presentations January 19, 2016 DEPARTMENT/DIVISION: ITEM DESCRIPTION: ITEM NO.: Jay Lotthammer, Director, State Farm Companies Foundation Donation on IV.D. Parks and Recreation Behalf of Gordon Williams; Eden Prairie Senior Center Volunteer Requested Action Move to: Adopt the resolution accepting the donation in the amount of$500 from State Farm Companies Foundation on behalf of Gordon Williams for his volunteer service at the Eden Prairie Senior Center to be used toward the 2016 Senior Center volunteer recognition event. Synopsis The Senior Center provides a wide variety of social, recreational and educational opportunities for adults and seniors, including special events, educational classes, trips and social activities. Gordon Williams serves on the Senior Center Advisory Council. He is also an active Senior Center volunteer and participates in various programs and activities, including trips and special events. The State Farm Companies Foundation Good Neighbor Grant Program; Matching Gift Program gives out matching monies, matching the amount of volunteer hours an individual submits to their volunteer location. Gordon Williams submitted volunteer hours to State Farm Companies in the amount that qualified his volunteer service hours for the donation of$500 to be used towards the annual Senior Center volunteer recognition event in April, 2016 as requested by Gordon Williams. Background Over 50 senior volunteers are recognized each spring at the annual volunteer recognition event for their dedicated time and commitment to the Senior Center programs, facilities and services. Attachment Resolution CITY OF EDEN PRAIRIE HENNEPIN COUNTY, MINNESOTA RESOLUTION NO. 2016- RESOLUTION RELATING TO ACCEPTANCE OF GIFTS BE IT RESOLVED BY THE EDEN PRAIRIE CITY COUNCIL THAT: The gift to the City in the amount of $500.00 to be used for the Senior Center Volunteer Recognition event at the Eden Prairie Senior Center from State Farm Companies Foundation on behalf of Gordon Williams for his volunteer service at the Eden Prairie Senior Center to is hereby recognized and accepted by the Eden Prairie City Council. ADOPTED by the City Council of the City of Eden Prairie this 19th day of January, 2016. Nancy Tyra-Lukens, Mayor ATTEST: Kathleen Porta, City Clerk ITEM NO.: VI.A. UNAPPROVED MINUTES CITY COUNCIL WORKSHOP & OPEN PODIUM TUESDAY,JANUARY 5, 2016 CITY CENTER 5:00—6:25 PM,HERITAGE ROOMS 6:30—7:00 PM, COUNCIL CHAMBER CITY COUNCIL: Mayor Nancy Tyra-Lukens, Council Members Brad Aho, Sherry Butcher Wickstrom, and Ron Case CITY STAFF: City Manager Rick Getschow, Police Chief Rob Reynolds, Fire Chief George Esbensen, Public Works Director Robert Ellis, Community Development Director Janet Jeremiah, Parks and Recreation Director Jay Lotthammer, Economic Development Manager Dave Lindahl, City Attorney Ric Rosow, and Recorder Jan Curielli GUESTS: Jeff McMenimen, Hoisington Koegler Group; Sarah Ghandour, Ryan Kronzer, Mike McGarvey, Southwest Light Rail Transit Project Office; Jim Alexander, Metro Transit Workshop-Heritage Room II II. 2016 APPOINTMENTS AND SCHEDULE (6:00-6:30)—(taken out of sequence) Tyra-Lukens noted Council Member Nelson was not able to attend the workshop but was okay with the proposed appointments. Getschow reviewed the 2016 calendar, noting that the Council meetings will usually be held on the first and third Tuesdays of each month. He said March 1 is caucus night, so staff suggests moving the March meetings to the second and fourth Tuesdays, March 8 and March 22, with March 22 to be used as a goal setting workshop. He noted the fourth Tuesday of February will be an additional meeting for the purpose of Board and Commission interviews. He also proposed that the May 17 meeting be moved to May 24 so that the May meetings would be held on the first and fourth Tuesdays. There would be only one meeting in June, July and August, and the December 20 meeting would be tentative. He said there will be a change in the term length of the Southwest Transit appointees to align with Southwest Transit's concerns. I. SOUTHWEST LRT LOCALLY REQUESTED CAPITAL IMPROVMENTS (5:30-6:00) Jeremiah introduced the Southwest Light Rail Transit(SWLRT) Project Office representatives present. Sarah Ghandour, SWLRT Project Office, gave a PowerPoint presentation starting with the overall project schedule. She noted they plan to have completed 100% of the civil design by the end of April, 2016. She reviewed the design of the three SWLRT Stations to be built in Eden Prairie, and noted the presentation includes a base project design and an enhanced design for each station. City Council Workshop Minutes January 5, 2016 Page 2 City West Station Ms Ghandour reviewed the design of the station and noted the station will have a 160 stall park and ride lot. Council Member Aho asked if that will have an impervious surface. Ms Ghandour replied it will. Aho asked about the signage at the station. Ms Ghandour replied there will be wayfinding signage at the end near the plaza and message signs on the platform. Tyra-Lukens asked why funds would be spent on signage regarding the time for the next train since they will run every ten minutes. Jim Alexander, Metro Transit, said the trains do not run every ten minutes at night, and there may be delays at other times of the day. Case asked if there is any sense that United Health Group (UHG)might be interested in being involved with the design and construction of the station since it presents an advantage to their business. Ms Ghandour said UHG has given some input regarding dates, use of colors at stations and landscaping design. Lindahl noted we are working towards offering them an opportunity to participate in the financing, but have not yet reached that point. Jeff McMenimen, Hoisington Koegler Group, said he is working closely with the Project Office on each of the stations, and the enhanced designs presented are the result of the work they have been doing. He noted City West is a gateway station for Eden Prairie, and, as such, provides an opportunity to present a sense of identity for the city. This station has one of the largest plaza opportunities on the entire line. He suggested there is an opportunity for a public artist to work with a landscape artist to put together a plan that would allow art pieces to be put in place at a later date. Tyra-Lukens asked about the size of the trees shown on the enhanced design. Mr. McMenimen said they are oak savannah. He noted the kiosk included on the plan would have signage and schedule information but might also offer coffee or newspapers. He reviewed some ideas for art to be placed in the center of the plaza. Aho asked if a monument type of sign would be used since this is the first station in Eden Prairie. Jeremiah said the signage would be about the station; however, something could be done on the retaining walls. She noted there are a lot of different ways people could recognize Eden Prairie. Ms Ghandour said there will be enhanced fencing at this station, and the design incorporates two canopies. She said the pylons will have graphic designs within them. She distributed samples of the exterior materials planned showing the palette of color proposed. Tyra-Lukens asked who will make decisions on the design of the canopies and pylons and if some elements of the City logo could be incorporated. Ms Ghandour said they are working with City staff on the themes and UHG liked the lighter color for the wall. Aho asked if the wall is poured concrete. Ms Ghandour replied it is poured concrete with textured patterns on the wall. Tyra-Lukens asked if they will attempt to introduce color in the landscaping. Mike McGarvey, SWLRT Project Office, said they plan to use native grasses and native wildflowers. City Council Workshop Minutes January 5, 2016 Page 3 Golden Triangle Station Ms Ghandour reviewed the plans for the Golden Triangle Station and noted there will be approximately 200 parking stalls between the two lots at this station. There will be bus stops for Southwest Transit as well as passenger drop offs along West 70th Street. She said the enhanced plan includes such things as the addition of permeable pavers along West 70th Street and an expanded plaza area which would offer more seating. Mr. McMenimen said he has worked with the Project Office about integrating the platform design with the West 70th Street streetscape. He reviewed a slide showing artistically-rendered bike racks. He noted wayfinding is an important feature because some of the stations are fairly remote, especially during the early phases of the line. Tyra-Lukens asked what kind of information will be included on the wayfinding signs. Mr. McMenimen said many of the signs would be identity signs. Tyra-Lukens asked how wayfinding would be incorporated for those getting off at a station. Mr. McMenimen said there is a robust trail system in this area, and people may be using that system to get to and from the station. Aho asked about pedestrian safety during train arrivals. Ms Ghandour said there will be tactile warnings so pedestrians would know they are about to cross the tracks. There will be pedestrian flashers when a train approaches, and there will be gates for cars. Aho noted it is very important to avoid pedestrian deaths along the SWLRT, and he believed some kind of visual aid was needed in light of recent fatalities at crossings on other light rail lines. Ms Ghandour said there is fencing on either side of the platform. Aho noted he worried more about the sidewalk area. Jeremiah said staff is hoping to get a Golden Triangle logo integrated into the streetscape selections on West 70th Street. Tyra-Lukens asked if there is a way to capture funding from redevelopment. Jeremiah replied they are looking at different ideas to fund this. Ms Ghandour said they are trying to mold the base design to better fit the enhanced design. Jeremiah said we have received a $170,000 grant to do much of the West 70th streetscape and have $400,000 each for the five stations. Ms Ghandour said they heard comments from the community that they wanted more visibility for this station. She distributed samples of the materials and color palette for the canopy and soffits. Jeremiah noted there are opportunities for public art at the bridge piers. Southwest Station Ms Ghandour reviewed the base and enhanced plans for the station, and noted they plan additional trees for screening and planted areas at the entrances. Mr. McMenimen said this station has great opportunities for public art with the wetlands and the gathering area. Ms Ghandour said they tried to coordinate the new structure with the existing Southwest Station structure through such means as using the same brick. Aho asked if the platform area will be heated. Ms Ghandour said it will have heaters that could be turned on if necessary. Aho believed there are a lot of elements in our monument signs that could be tied into this. City Council Workshop Minutes January 5, 2016 Page 4 Tyra-Lukens commented the slide showing the view from Technology Drive shows great potential for an art piece. Jeremiah noted staff would like to discuss priorities on public art. Aho asked if there is an opportunity to have some kind of private/public partnership with artists in the community,perhaps in the way Jim Gabberts worked with staff on the design of the Community Center. Jeremiah said they have discussed getting something into the station with UHG and will continue to try to involve others. Every type of grant opportunity will be explored, and any savings on the budget could give more funds. Tyra-Lukens said the discussion of the priorities for public art is important. Donors of public art might have a specific site in mind. She suggested public funding might be done at Southwest Station because more people would see it at that location. Jeremiah noted a lot of Southwest Station is visible when traveling east on Hwy 212, so we need to look closely at the visibility aspect of this station. Open Podium - Council Chamber III. OPEN PODIUM IV. ADJOURNMENT ITEM NO.: V I.B. UNAPPROVED MINUTES EDEN PRAIRIE CITY COUNCIL MEETING TUESDAY,JANUARY 5, 2016 7:00 PM, CITY CENTER Council Chamber 8080 Mitchell Road CITY COUNCIL: Mayor Nancy Tyra-Lukens, Council Members Brad Aho, Sherry Butcher Wickstrom, Ron Case, and Kathy Nelson CITY STAFF: City Manager Rick Getschow, Public Works Director Robert Ellis, Community Development Director Janet Jeremiah, Parks and Recreation Director Jay Lotthammer, City Attorney Ric Rosow, and Council Recorder Jan Curielli I. CALL THE MEETING TO ORDER Mayor Tyra-Lukens called the meeting to order at 7:00 PM. All Council Members were present. II. PLEDGE OF ALLEGIANCE III. OPEN PODIUM INVITATION IV. PROCLAMATIONS/PRESENTATIONS V. APPROVAL OF AGENDA AND OTHER ITEMS OF BUSINESS Getschow said Item VIII.N. should be conditioned on the approval of the City Attorney. MOTION: Nelson moved, seconded by Aho, to approve the agenda as published. Motion carried 5-0. VI. MINUTES A. COUNCIL WORKSHOP HELD TUESDAY, DECEMBER 1, 2015 MOTION: Butcher Wickstrom moved, seconded by Nelson, to approve the minutes of the Council workshop held Tuesday, December 1, 2015, as published. Motion carried 5-0. B. CITY COUNCIL MEETING HELD TUESDAY, DECEMBER 1, 2015 MOTION: Aho moved, seconded by Case, to approve the minutes of the City Council meeting held Tuesday, December 1, 2015, as published. Motion carried 5- 0. CITY COUNCIL MINUTES January 5, 2016 Page 2 VII. REPORTS OF ADVISORY BOARDS & COMMISSIONS VIII. CONSENT CALENDAR A. CLERK'S LICENSE LIST B. APPROVE SECOND READING OF ORDINANCE NO. 1-2016 AMENDING CITY CODE CHAPTER 11 RELATING TO PLANNED UNIT DEVELOPMENT AND SITE PLAN REVIEW PROCESSES AND ADOPT RESOLUTION NO. 2016-01 APPROVING PUBLICATION OF SUMMARY ORDINANCE C. APPROVE SECOND READING OF ORDINANCE NO. 2-2016 AMENDING CITY CODE CHAPTER 12 RELATING TO SUBDIVISION OF PROPERTY AND ADOPT RESOLUTION 2016-02 APPROVING PUBLICATION OF SUMMARY ORDINANCE D. ADOPT RESOLUTION NO. 2016-03 AUTHORIZING CITY OFFICIALS TO TRANSACT BANKING BUSINESS E. ADOPT RESOLUTION NO. 2016-04 DESIGNATING DEPOSITORIES F. ADOPT RESOLUTION NO. 2016-05 AUTHORIZING USE OF FACSIMILE SIGNATURES BY PUBLIC OFFICIALS G. ADOPT RESOLUTION NO. 2016-06 AUTHORIZING TREASURER OR DEPUTY TREASURER TO INVEST CITY OF EDEN PRAIRIE FUNDS H. ADOPT RESOLUTION NO. 2016-07 AUTHORIZING TREASURER OR DEPUTY TREASURER TO MAKE ELECTRONIC FUND TRANSFERS FOR CITY OF EDEN PRAIRIE I. ADOPT RESOLUTION NO. 2016-08 AUTHORIZING PAYMENT OF CERTAIN CLAIMS BY FINANCE DEPARTMENT WITHOUT PRIOR COUNCIL APPROVAL J. ADOPT RESOLUTION NO. 2016-09 ESTABLISHING MEETING DATES AND TIMES FOR CITY BOARDS AND COMMISSIONS FOR 2016 K. ADOPT RESOLUTION NO. 2016-10 APPROVING JOINT POWERS AGREEMENTS AND COURT DATA SERVICES SUBSCRIBER AMENDMENTS WITH STATE OF MINNESOTA L. APPROVE FUNDING RECOMMENDATIONS MADE BY THE HUMAN SERVICES REVIEW COMMITTEE FOR SOCIAL SERVICE PROVIDERS FOR 2016 AND 2017 CITY COUNCIL MINUTES January 5, 2016 Page 3 M. APPROVE AMENDMENT TO THE JOINT POWERS AGREEMENT WITH SOUTH METRO PUBLIC SAFETY TRAINING FACILITY N. APPROVE 5-YEAR LEASE CONTRACT WITH FIRE SAFETY U.S.A. FOR THERMAL IMAGING CAMERAS MOTION: Case moved, seconded by Nelson, to approve Items A-N on the Consent Calendar, with the condition that Item N be approved by the City Attorney. Motion carried 5-0. IX. PUBLIC HEARINGS/MEETINGS A. SOUTHWEST STATION PUD AMENDMENT by SW Metro Transit Request for Planned Unit Development District Review with waivers on 11.38 acres; Zoning District Amendment within the Commercial Regional Service Zoning District on 11.38 acres; Site Plan Review on 11.38 acres. Location: 13500 Technology Drive Getschow said the Council discussed Southwest Station at the workshop earlier this evening. He said official notice of this public hearing was published in the December 24, 2015,Eden Prairie News and mailed to 167 property owners. The proposed project is for the removal of two existing buildings, construction of a parking ramp addition, construction of a new indoor waiting area, and other site changes associated with the proposed Southwest Light Rail Transit(SWLRT) Green Line Extension by the Metropolitan Council. Regional authority supersedes decisions and actions of local governments and as such, the Metropolitan Council is not required to gain local approval for regional projects. In this case, as a part of the partnership between the SWLRT project office and the City of Eden Prairie, the SWLRT project office has agreed to participate in the public process in order to provide the opportunity for local review and comment on the proposed parking ramp addition and other changes at Southwest Station. Getschow said the SWLRT project includes a LRT station at Southwest Station. As a part of the LRT station improvements, a parking ramp accommodating approximately 450 vehicles is proposed for construction adjacent and connected immediately west of the existing parking ramp. He said the SWLRT Project Office has representatives here tonight to give an overview of the project. He noted the Planning Commission voted 6-0 at their December 7, 2015, meeting to approve the project and included several comments to be taken into consideration. Ryan Kronzer, SWLRT Project Office, gave a PowerPoint presentation about the plans for Southwest Station. He said they wanted to complement the existing parking with the new parking structure. There are some easements required with Southwest Transit, and the project will require the acquisition of the Culvers property, where one of the two vehicle entrances to the parking structure will be built. The other entrance will be the existing one. He noted there will be no distinction between parking for the bus or the light rail. CITY COUNCIL MINUTES January 5, 2016 Page 4 Aho asked if the total parking will be the current 900 stalls plus 450 new ones. Mr. Kronzer said that was correct. Mr. Kronzer reviewed the basic and enhanced designs for the station. He noted there will be a covered drop off area, and they plan a variety of landscape designs. There will be a loading platform on either side of the tracks. There will be five gates and an indoor bus waiting area. The station will continue to be named Southwest Station, but the brand logo for Metro Transit will be added to the structure. Mr. Kronzer said the Planning Commission's recommendations included looking at a variety of screening materials to minimize headlight wash spilling to the outside. They also suggested adding more metal at the corner near Technology Drive. There will be a base of brick on the first level of parking. He noted there will be just 25 feet of separation between the train and the bus in the station, so there will be a very seamless connection between the two. He noted the Planning Commission also suggested using a warmer color than a bright white. Nelson said when she looked at the landscaping proposed, she only saw trees. The existing structure has a lot of flowers,but she did not see anything about having flowers at the new structure. She noted Southwest Station has been a showpiece, and she was concerned that the proposed design doesn't maintain the current look. Mr. Kronzer replied they can recheck what is planned for the plantings; however, he noted the base plan reflects the funding cuts required last summer. Tyra-Lukens asked if the 75% funding cut pertains to new landscaping or replacing what was destroyed. Mr. Kronzer said it is both. Nelson suggested they dig up what is there and replant it. She believed the native grasses in the plan would take over flower plantings. It would not be too expensive to use some of the plantings that are there so that some of the current look could be maintained. She noted Eden Prairie has lost one station from the design and one has been postponed, so she thought maintaining some of the current look was not too much to ask. Tyra-Lukens said she read about a discussion of existing monument signs at the intersection of Prairie Center Drive and asked if those would be moved or replaced. Mr. Kronzer said that was not part of the Southwest Station project. Tyra-Lukens asked if the monument sign would be something substantial. Mr. Kronzer said it would. There were no comments from the audience. Case said the current parking deck at Southwest Transit is a beautiful building, and he would like to see matching brick added to the corners of the new structure. Butcher Wickstrom commented she liked the new design of the corners. CITY COUNCIL MINUTES January 5, 2016 Page 5 MOTION: Case moved, seconded by Butcher Wickstrom, to close the public hearing, and to direct staff to continue working with the SWLRT Project Office to refine plans for the proposed parking ramp and site improvements in accordance with staff, Planning Commission and City Council comments. Motion carried 5- 0. B. DOS MANITOS PUD AMENDMENT (MARTIN BLU TRAIL) by Eden Prairie Development, LLC. Request for Planned Unit Development District Review with waivers on 0.97 acres and Site Plan Review on 0.97 acres. Location: 14200 & 14301 Martin Drive. (Ordinance for PUD District Review) Getschow said the proposed trail for the Martin Blu property would go through the Dos Manitos property. The Council had discussions with the developer of Martin Blu about an alternative to the three-foot trail. An alternative trail that would go through the Dos Manitos property would affect their proof of parking. He said the Planning Commission recommended denial of the request on a 6-0 vote,primarily because of concern over the reduction in proof of parking. Staff feels there is value in having the trail come through the back of the Martin Blu property and through the Dos Manitos property to connect to the regional trail. Case asked if the Dos Manitos property gives up any rights to a future use. Getschow said the issue is that there is room for some additional parking,but not as much as we originally thought. There would be an easement for the trail, and we would find other possibilities for parking if it were needed. Jeremiah said a waiver to the parking requirement would be created and that could not be changed. We might want to consider overflow parking if another use comes about. She said staff does not have a huge concern as this is a somewhat isolated area. There might be some effect on the property value,but staff believes the day care is a long term use. There were no comments from the audience. MOTION: Butcher Wickstrom moved, seconded by Nelson to close the public hearing; to approve first reading of the ordinance for Planned Unit Development District Review with waivers and Zoning District Amendment within the Community Commercial Zoning District on .97 acres; to direct staff to revise the development agreement incorporating staff recommendations and Council conditions for the Dos Manitos (Jardin) daycare property; and to direct staff to revise the development agreement incorporating staff recommendations and Council conditions for the Mitchell Crossing 2012 (Martin Blu)property. Motion carried 5-0. X. PAYMENT OF CLAIMS MOTION: Case moved, seconded by Aho, to approve the payment of claims as submitted. Motion was approved on a roll call vote,with Aho, Butcher Wickstrom, Case,Nelson and Tyra-Lukens voting "aye." CITY COUNCIL MINUTES January 5, 2016 Page 6 XI. ORDINANCES AND RESOLUTIONS XII. PETITIONS, REQUESTS AND COMMUNICATIONS XIII. APPOINTMENTS A. RESOLUTION NO. 2016-11 DESIGNATING OFFICIAL CITY NEWSPAPER MOTION: Aho moved, seconded by Case, to adopt Resolution 2016-11 designating the Eden Prairie News as the official City newspaper for 2016. Motion carried 5-0. B. RESOLUTION NO. 2016-12 DESIGNATING OFFICIAL MEETING DATES, TIME AND PLACE FOR THE EDEN PRAIRIE CITY COUNCIL IN 2016 AND APPOINTING ACTING MAYOR Tyra-Lukens said the Council Members received a list of meeting dates and have agreed on those dates. MOTION: Butcher Wickstrom moved, seconded by Nelson, to adopt Resolution No. 2016-12 designating the official meeting dates, time and place for the City of Eden Prairie Council in 2016 and appointing Councilmember Case the Acting Mayor. Motion carried 5-0. C. RESOLUTION NO. 2016-13 APPOINTING COMMISSIONERS TO THE EDEN PRAIRIE HOUSING AND REDEVELOPMENT AUTHORITY MOTION: Case moved, seconded by Butcher Wickstrom, to adopt Resolution No. 2016-13 appointing City Council Members to serve as Commissioners for the Eden Prairie Housing and Redevelopment Authority; and appointing Nancy Tyra- Lukens as Chair; Rick Getschow as Executive Director and Council Member Nelson as Secretary for calendar year 2016. Motion carried 5-0. D. RESOLUTION NO. 2016-14 APPOINTING DIRECTOR AND ALTERNATE DIRECTOR TO THE SUBURBAN RATE AUTHORITY MOTION: Nelson moved, seconded by Butcher Wickstrom, to adopt Resolution No. 2016-14 designating Robert Ellis as the Director and Council Member Case as the Alternate Director to the Suburban Rate Authority. Motion carried 5-0. E. APPOINTMENT OF MAYOR TYRA-LUKENS AS DELEGATE AND COUNCIL MEMBERS AS ALTERNATES TO NATIONAL LEAGUE OF CITIES MOTION: Aho moved, seconded by Case, to approve appointment of the Mayor as Delegate and Council Members as Alternates to the National League of Cities. CITY COUNCIL MINUTES January 5, 2016 Page 7 Motion carried 5-0. F. APPOINTMENT OF MAYOR TYRA-LUKENS TO MUNICIPAL LEGISLATIVE COMMISSION MOTION: Case moved, seconded by Nelson, to approve appointment of the Mayor to the Municipal Legislative Commission. Motion carried 5-0. G. APPOINTMENT TO SOUTHWEST CABLE COMMISSION MOTION: Butcher Wickstrom moved, seconded by Case, to approve appointment of Council Member Nelson to the Southwest Cable Commission. Motion carried 5-0. H. APPOINTMENT TO EDEN PRAIRIE COMMUNITY FOUNDATION MOTION: Nelson moved, seconded by Aho, to approve appointment of Council Member Case to the Eden Prairie Community Foundation. Motion carried 5-0. I. APPOINTMENT TO I-494 CORRIDOR COMMISSION MOTION: Case moved, seconded by Butcher Wickstrom, to approve appointment of Council Member Aho to the I-494 Corridor Commission. Motion carried 5-0. J. APPOINTMENT TO CITY AND SCHOOL FACILITIES USE TASK FORCE MOTION: Aho moved, seconded by Nelson, to approve appointment of Council Member Butcher Wickstrom to the City and School Facilities Use Task Force. Motion carried 5-0. K. APPOINTMENT OF ASSISTANT WEED INSPECTOR MOTION: Case moved, seconded by Butcher Wickstrom, to appoint Jeff Cordes as Assistant Weed Inspector for the City of Eden Prairie. Motion carried 5-0. L. RESOLUTION NO. 2016-15 APPOINTING MUNICIPAL REPRESENTATIVES TO THE FIRE RELIEF ASSOCIATION BOARD OF TRUSTEES MOTION: Nelson moved, seconded by Butcher Wickstrom,to adopt Resolution No. 2016-15 appointing Council Member Case and Sue Kotchevar to the Eden Prairie Fire Relief Association. Motion carried 5-0. M. SOUTHWEST TRANSIT BOARD COUNCIL REPRESENTATIVE MOTION: Case moved, seconded by Butcher Wickstrom, to appoint Council Member Aho to the Southwest Transit Board as the Eden Prairie Council Representative for a two-year term to end December 31, 2017. Motion carried 5-0. CITY COUNCIL MINUTES January 5, 2016 Page 8 Tyra-Lukens asked if the two motions resolve the concern of Southwest Transit that was discussed in the workshop. Rosow said the motions will get the terms staggered in the proper order. Getschow noted these appointments are done every January. MOTION: Case moved, seconded by Nelson, to appoint Mayor Tyra-Lukens to the Southwest Transit Board as the Eden Prairie Appointed Representative for a three-year term to end December 31, 2018. Motion carried 5-0. XIV. REPORTS A. REPORTS OF COUNCIL MEMBERS B. REPORT OF CITY MANAGER 1. Board and Commission Recruitment Process Getschow reviewed the schedule for the 2016 recruitment for Boards and Commissions. The process of recruiting will begin January 11 and continue through February 5. MOTION: Butcher Wickstrom moved, seconded by Nelson, to approve the timeline for recruitment of Board and Commission candidates and to set Feb. 23 as the date for commission interviews. Motion carried 5-0. Tyra-Lukens expressed her hope we do a good job of communicating this to the community and also to make an effort to get younger people involved. Getschow said we might do some outreach to students who served as Student Representatives to the Boards and Commissions in the past. 2. Supervalu Lease Amendment Getschow said just over a year ago we signed a lease with Supervalu for 43,996 square feet on the upper west end of the City Center building. Supervalu has agreed to lease another 13,825 square feet which will bring their total leased space to 57,821 square feet. Because the space is contiguous and there will be tenant improvements, staff requested that the new space be on the same lease time as the original 44,000 square feet, and Supervalu agreed to a 15-month extension for the original lease. That will mean there will be an additional year on the original space and a five-year lease on the total space. He said there is 16,085 square feet remaining that the City will be actively marketing. Case noted Supervalu has the right of first refusal on the 16,000 square foot remainder. He asked if we have any idea they are interested in that space because that would have an effect on the current tenants. Getschow replied we intend to continue to accommodate the current tenants in this building, including the Eden Prairie Foundation. If someone else were to come along CITY COUNCIL MINUTES January 5, 2016 Page 9 and want the space, we would want to find the same or similar space for the Foundation. It is also something to explore with Supervalu, and we will also continue to market it. MOTION: Aho moved, seconded by Case, to approve the second amendment to lease agreement between the City of Eden Prairie and Supervalu Inc. for space at the Eden Prairie City Center property located at 8100 Mitchell Road. Motion carried 5-0. C. REPORT OF THE COMMUNITY DEVELOPMENT DIRECTOR D. REPORT OF PARKS AND RECREATION DIRECTOR E. REPORT OF PUBLIC WORKS DIRECTOR F. REPORT OF POLICE CHIEF G. REPORT OF FIRE CHIEF H. REPORT OF CITY ATTORNEY XV. OTHER BUSINESS XVI. ADJOURNMENT MOTION: Case moved, seconded by Nelson, to adjourn the meeting. Motion carried 5-0. Mayor Tyra-Lukens adjourned the meeting at 7:59 PM. CITY COUNCIL AGENDA DATE: SECTION: Consent Calendar January 19, 2016 DEPARTMENT/DIVISION: ITEM DESCRIPTION: ITEM NO.: Paul Sticha, Administration, Architectural Consultant for Police VIII.A. Facilities Space Study Requested Action Move to: Award the Professional Services Agreement for Architectural Services for the Preliminary Police Space Study to Welsh Architecture. Synopsis The preliminary planning services include site assessment, space programming and fit plan, preliminary architectural, structural and civil construction plans and construction cost estimates. The estimated fees are between$42,500 and $47,250. The recommended service agreement is not to exceed $48,000. This is budgeted in 2016 CIP. Background Information Police staff developed a "needs assessment" in 2014 and 2015. The assessment included department reconfiguration, booking room updates, separate public entrance into Police and parking needs. The assessment and potential remodel would serve the Police Department for approximately the next 20 years. Welsh Architecture has previously provided architectural services to the City for"BOMA 10" building square footage study, City Center vacancy space planning, new Garden Room Entrance construction plans and assistance with SuperValu construction plans. Attachments • Planning Services proposal from Welsh Architecture. • Professional Services Agreement with Welsh Architecture. I / r ■ !'� ■ ■ VV L 3 n 4350 Baker Road,Suite 400 Minnetonka,MN 55343 Main 952.897.7700 Fax 952.842.7700 www.welshco.com December 18, 2015 Mr. Paul Sticha, Facilities Manager City of Eden Prairie 8080 Mitchell Road Eden Prairie, MN 55344-4485 RE: Preliminary Planning Services for the Remodeling & Expansion of the E. P. Police Department Facilities Dear Paul, Our proposal is based on the services required to Preliminary Plan the Police Department into `yet to be determined amount' of square feet of space. The following fees include `approximate amounts' for Space Planning, Architectural Design & Construction Estimating services at 8080 Mitchell Road in the existing Eden Prairie City Center premises. Should the scope of work change, fees may change accordingly. The scope of work is limited expressly to the items noted or referenced herein. Scope of Work: • SPACE PROGRAMMING: Help prepare a Space Program for all current & proposed Police Department facilities including transportation related requirements. Space program will be prepared with the help of the Police Department staff & will reflect the input of the Department's 2014 `Needs Assessment.' • AS-BUILT SURVEY + AUTOCAD UPDATING: Identify, on the existing floor plan the current room identifications, functions & special furnishings conditions. This exercise will include a precise as-built conditions survey + AutoCAD base sheet revisions as needed to accurately reflect the current conditions. • SITE ASSESSMENT: Help identify all transportation-related requirements & determine the area necessary to meet those requirements. Additionally make preliminary suggestions as to how the current site will be modified to meet the current & on-going demands of the Police Department. r ,, Colliers WE LSr1 od Local Expertise.Global Reach.In partnership with Colliers International for brokerage and real estate management services, Welsh offers a fully integrated suite of real estate services to best address the ever-evolving needs of each unique client BROKERAGE • REAL ESTATE MANAGEMENT • CONSTRUCTION • ARCHITECTURE • FACILITY SERVICES • CAPITAL I / r ■ !'� ■ ■ VV L 3 n 4350 Baker Road,Suite 400 Minnetonka,MN 55343 Main 952.897.7700 Fax 952.842.7700 www.welshco.com • FIT PLANNING: Prepare (2) Fit Plans based upon the following general conditions: PATH A) Use the existing Heritage Rooms & Facilities Department offices for expansion space for Police and then build new conference rooms & facilities department offices upstairs in the current remaining office space vacancies. Note to explore this option we should prepare the upper floor plans for the displaced conference rooms & facilities department so that all related remodeling costs can be included; & PATH B) Prepare preliminary plans for a building addition to accommodate all programmed Police Department requirements that cannot be met by their current facilities. Note that both options will reconfigure the entry to the Lower Level of the Police Department so that it will become the main point of entry for all Police related services. This will then have to coordinate with all newly planned roadways, surface parking areas, garages & enclosed parking improvements. • PRELIMINARY CONTSTRUCTION COST ESTIMATING: Prepare preliminary cost estimates for both options: A) Relies to a greater extent on the use of current facilities with an expansion of new construction only "as needed" & B) Relies to a greater extent on the remodeling the existing premises & the expansion of newly constructed facilities. • CIVIL SCHEMATIC SITE PLANNING: Review existing site layout and configuration and help prepare a modified schematic site layout that meets the needs of the Police Department. Schematic site plan, grading plan, utility, storm water and landscaping plans will be provided. • Summary of Proposed Fees: • SPACE PROGRAMMING $4,640.00 • AS-BUILT SURVEY + AUTOCAD UPDATING: $4,640.00 • SITE ASSESSMENT: $5,800.00 • FIT PLANNING PATH 'A': $6,960.00 • FIT PLANNING PATH `B': $12,000.00 • PRELIMINARY CONTSTRUCTION COST ESTIMATING: $5,184.00 • PRELIMINARY CIVIL ENGINEERING CONSULTING: + $8,000.00 • ESTIMATED TOTAL: $47,244.00 Anticipated Range of Lump-Sum Fees: $42,520.00* to $47,244.00. r Colliers W C L S T7 °"°` Local Expertise.Global Reach.In partnership with Colliers International for brokerage and real estate management services. Welsh offers a fully integrated suite of real estate services to best address the ever-evolving needs of each unique client BROKERAGE • REAL ESTATE MANAGEMENT • CONSTRUCTION • ARCHITECTURE • FACILITY SERVICES • CAPITAL IAtr ■ ■ ■ VV L 3 4350 Baker Road,Suite 400 Minnetonka,MN 55343 Main 952.897.7700 Fax 952.842.7700 www.welshco.com * Less 10% of the higher estimated number should less time be required to get any particular phase executed. Potential for Contractual Adjustments We understand that during the course of this study, due to the multitude of elements being investigated, that it may become apparent that essential `additions to' and/or `deletions from' the services described above may occur. Should this occur, Terms & Conditions item No. 3 below will serve to guide the adjustments. Terms and Conditions 1. Invoices will be issued monthly with payment due 25 days after date on invoice. Unpaid invoices accrue interest at the rate of 1.5 percent per month. WELSH Architecture reserves the right to suspend work on the project due to non-payment of invoices. 2. This proposal is valid for sixty (60) days 3. Reasonable and appropriate care was used in preparation of our proposal, but that does not guarantee further unforeseen or concealed items exist at the project site or changes in the process that occur. If the scope of work changes, as requested by the owner, then WELSH Architecture, or The City of Eden Prairie, shall be entitled to an equitable adjustment to the contract amount. 4. Additional services requested by the client that extend beyond the Scope of Work described above will be invoiced at standard hourly rates as negotiated prior to commencement of service and as approved by the client. WELSH Coliret'ti Local Expertise.Global Reach.In partnership with Colliers International for brokerage and real estate management services, Welsh offers a fully integrated suite of real estate services to best address the ever-evolving needs of each unique client BROKERAGE • REAL ESTATE MANAGEMENT • CONSTRUCTION • ARCHITECTURE • FACILITY SERVICES • CAPITAL IAI r ■ ■ ■ wELsn 4350 Baker Road,Suite 400 Minnetonka,MN 55343 Main 952.897.7700 Fax 952.842.7700 www.welshco.com Thank you for the opportunity to provide this pricing. If you should have any questions, please call Tom at 952-897-7869 or Lynn at 952-897-7870. Respectfully, Tom Winterer, Senior Project Manager Lynn Sloat, AIA Senior Vice President AGREED AND ACCEPTED: By: Date: Paul Sticha — Facilities Manager City of Eden Prairie, Minnesota r ,, Colliers WELSH o. Local Expertise.Global Reach.In partnership with Colliers International for brokerage and real estate management services, Welsh offers a fully integrated suite of real estate services to best address the ever-evolving needs of each unique client BROKERAGE • REAL ESTATE MANAGEMENT • CONSTRUCTION • ARCHITECTURE • FACILITY SERVICES • CAPITAL Standard Agreement for Professional Services This Agreement ("Agreement") is made on the 19th day of January 2016, between the City of Eden Prairie, Minnesota (hereinafter "City"), whose business address is 8080 Mitchell Road, Eden Prairie, MN 55344, and Welsh Architecture a Minnesota Corporation (hereinafter "Consultant") whose business address is 4350 Baker Road, Suite 400, Minnetonka, MN 55343. Preliminary Statement The City has adopted a policy regarding the selection and hiring of consultants to provide a variety of professional services for City projects. That policy requires that persons, firms or corporations providing such services enter into written agreements with the City. The purpose of this Agreement is to set forth the terms and conditions for the provision of professional services by Consultant for Preliminary Planning Services for Police Remodel, hereinafter referred to as the "Work". The City and Consultant agree as follows: 1. Scope of Work. The Consultant agrees to provide the professional services shown in the proposal dated December 18, 2015 in connection with the Work. The terms of this Agreement shall take precedence over any provisions of the Consultants proposal and/or general conditions. If the Consultants proposal is attached as the Exhibit A Scope of Work, City reserves the right to reject any general conditions in such proposal. 2. Term. The term of this Agreement shall be from January 19, 2016 through December 31, 2016, the date of signature by the parties notwithstanding. This Agreement may be extended upon the written mutual consent of the parties for such additional period as they deem appropriate, and upon the terms and conditions as herein stated. 3. Compensation for Services. City agrees to pay the Consultant on an hourly basis plus expenses in a total amount not to exceed $48,000 for the services as described in the attached proposal. A. Any changes in the scope of the work which may result in an increase to the compensation due the Consultant shall require prior written approval by an authorized representative of the City or by the City Council. The City will not pay additional compensation for services that do not have prior written authorization. B. Special Consultants may be utilized by the Consultant when required by the complex or specialized nature of the Project and when authorized in writing by the City. C. If Consultant is delayed in performance due to any cause beyond its reasonable control, including but not limited to strikes, riots, fires, acts of God, governmental actions, actions of a third party, or actions or inactions of City, the time for performance shall be extended by a period of time lost by reason of the delay. Consultant will be entitled to payment for its reasonable additional charges, if any, due to the delay. 4. City Information. The City agrees to provide the Consultant with the complete information concerning the Scope of the Work and to perform the following services: A. Access to the Area. Depending on the nature of the Work, Consultant may from time to time require access to public and private lands or property. As may be necessary, the City shall obtain access to and make all provisions for the Consultant to enter upon public and private lands or property as required for the Consultant to perform such services necessary to complete the Work. B. Consideration of the Consultant's Work. The City shall give thorough consideration to all reports, sketches, estimates, drawings, and other documents presented by the Consultant, and shall inform the Consultant of all decisions required of City within a reasonable time so as not to delay the work of the Consultant. C. Standards. The City shall furnish the Consultant with a copy of any standard or criteria, including but not limited to, design and construction standards that may be required in the preparation of the Work for the Project. D. City's Representative. A person shall be appointed to act as the City's representative with respect to the work to be performed under this Agreement. He or she shall have complete authority to transmit instructions, receive information, interpret, and define the City's policy and decisions with respect to the services provided or materials, equipment, elements and systems pertinent to the work covered by this Agreement. 5. Method of Payment. The Consultant shall submit to the City, on a monthly basis, an itemized invoice for professional services performed under this Agreement. Invoices submitted shall be paid in the same manner as other claims made to the City for: A. Progress Payment. For work reimbursed on an hourly basis, the Consultant shall indicate for each employee, his or her name, job title, the number of hours worked, rate of pay for each employee, a computation of amounts due for each employee, and the total amount due for each project task. Consultant shall verify all statements submitted for payment in compliance with Minnesota Statutes Sections 471.38 and 471.391. For reimbursable expenses, if provided for in Exhibit A, the Consultant shall provide an itemized listing and such documentation as reasonably required by the City. Each invoice shall contain the City's project number and a progress summary showing the original (or amended) amount of the contract, current billing, past payments and unexpended balance of the contract. B. Suspended Work. If any work performed by the Consultant is suspended in whole or in part by the City, the Consultant shall be paid for any services set forth on Exhibit A performed prior to receipt of written notice from the City of such suspension. C. Payments for Special Consultants. The Consultant shall be reimbursed for the work of special consultants, as described herein, and for other items when authorized in writing by the City. D. Claims. To receive any payment on this Agreement, the invoice or bill must include the following signed and dated statement: "I declare under penalty of Standard Agreement for Professional Services 2014.04 Page 2 of 8 perjury that this account, claim, or demand is just and correct and that no part of it has been paid." 6. Project Manager and Staffing. The Consultant has designated Tom Winterer to serve on the Project. He shall be assisted by other staff members as necessary to facilitate the completion of the Work in accordance with the terms established herein. Consultant may not remove or replace the designated staff from the Project without the approval of the City. 7. Standard of Care. Consultant shall exercise the same degree of care, skill and diligence in the performance of its services as is ordinarily exercised by members of the profession under similar circumstances in Hennepin County, Minnesota. Consultant shall be liable to the fullest extent permitted under applicable law, without limitation, for any injuries, loss, or damages proximately caused by Consultant's breach of this standard of care. Consultant shall put forth reasonable efforts to complete its duties in a timely manner. Consultant shall not be responsible for delays caused by factors beyond its control or that could not be reasonably foreseen at the time of execution of this Agreement. Consultant shall be responsible for costs, delays or damages arising from unreasonable delays in the performance of its duties. 8. Audit Disclosure and Data Practices. Any reports, information, data, etc. given to, or prepared or assembled by the Consultant under this Agreement which the City requests to be kept confidential, shall not be made available to any individual or organization without the City's prior written approval. The books, records, documents and accounting procedures and practices of the Consultant or other parties relevant to this Agreement are subject to examination by the City and either the Legislative Auditor or the State Auditor for a period of six (6) years after the effective date of this Agreement. This Agreement is subject to the Minnesota Government Data Practice Act, Minnesota Statutes Chapter 13 (Data Practices Act). All government data, as defined in the Data Practices Act Section 13.02, Subd 7, which is created, collected, received, stored, used, maintained, or disseminated by Consultant in performing any of the functions of the City during performance of this Agreement is subject to the requirements of the Data Practice Act and Consultant shall comply with those requirements as if it were a government entity. All subcontracts entered into by Consultant in relation to this Agreement shall contain similar Data Practices Act compliance language. 9. Termination. This Agreement may be terminated by either party by seven (7) days written notice delivered to the other party at the address written above. Upon termination under this provision, if there is no fault of the Consultant, the Consultant shall be paid for services rendered and reimbursable expenses until the effective date of termination. If however, the City terminates the Agreement because the Consultant has failed to perform in accordance with this Agreement, no further payment shall be made to the Consultant, and the City may retain another consultant to undertake or complete the Work identified herein. 10. Subcontractor. The Consultant shall not enter into subcontracts for services provided under this Agreement except as noted in the Scope of Work, without the express written consent of the City. The Consultant shall pay any subcontractor involved in the performance of this Agreement within ten (10) days of the Consultant's receipt of payment by the City for undisputed services provided by the subcontractor. If the Standard Agreement for Professional Services 2014.04 Page 3 of 8 Consultant fails within that time to pay the subcontractor any undisputed amount for which the Consultant has received payment by the City, the Consultant shall pay interest to the subcontractor on the unpaid amount at the rate of 1.5 percent per month or any part of a month. The minimum monthly interest penalty payment for an unpaid balance of $100 or more is $10. For an unpaid balance of less than $100, the Consultant shall pay the actual interest penalty due to the subcontractor. A subcontractor who prevails in a civil action to collect interest penalties from the Consultant shall be awarded its costs and disbursements, including attorney's fees, incurred in bringing the action. 11. Independent Consultant. Consultant is an independent contractor engaged by City to perform the services described herein and as such (i) shall employ such persons as it shall deem necessary and appropriate for the performance of its obligations pursuant to this Agreement, who shall be employees, and under the direction, of Consultant and in no respect employees of City, and (ii) shall have no authority to employ persons, or make purchases of equipment on behalf of City, or otherwise bind or obligate City. No statement herein shall be construed so as to find the Consultant an employee of the City. 12. Insurance. a. General Liability. Prior to starting the Work, Consultant shall procure, maintain and pay for such insurance as will protect against claims or loss which may arise out of operations by Consultant or by any subcontractor or by anyone employed by any of them or by anyone for whose acts any of them may be liable. Such insurance shall include, but not be limited to, minimum coverages and limits of liability specified in this Paragraph, or required by law. b. Consultant shall procure and maintain the following minimum insurance coverages and limits of liability for the Work: Worker's Compensation Statutory Limits Employer's Liability $500,000 each accident $500,000 disease policy limit $500,000 disease each employee Commercial General Liability $1,500,000 property damage and bodily injury per occurrence $2,000,000 general aggregate $2,000,000 Products — Completed Operations Aggregate $100,000 fire legal liability each occurrence $5,000 medical expense Comprehensive Automobile Liability $1,000,000 combined single limit each accident (shall include coverage for all owned, hired and non-owed vehicles.) Umbrella or Excess Liability $1,000,000 Standard Agreement for Professional Services 2014.04 Page 4 of 8 c. Commercial General Liability. The Commercial General Liability Policy shall be on ISO form CG 00 01 12 07 or CG 00 01 04 13, or the equivalent. Such insurance shall cover liability arising from premises, operations, independent contractors, products-completed operations, personal and advertising injury, and liability assumed under an insured contract (including the tort liability of another assumed in a business contract). There shall be no endorsement or modification of the Commercial General Liability form arising from pollution, explosion, collapse, underground property damage or work performed by subcontractors. d. Professional Liability Insurance. In addition to the coverages listed above, Consultant shall maintain a professional liability insurance policy in the amount of $2,000,000. Said policy need not name the City as an additional insured. It shall be Consultant's responsibility to pay any retention or deductible for the professional liability insurance. Consultant agrees to maintain the professional liability insurance for a minimum of two (2) years following termination of this Agreement. e. Consultant shall maintain "stop gap" coverage if Consultant obtains Workers' Compensation coverage from any state fund if Employer's liability coverage is not available. f. All policies, except the Worker's Compensation Policy, Automobile Policy, and Professional Liability Policy, shall name the "City of Eden Prairie" as an additional insured on ISO forms CG 20 10 07 04 or CG 20 10 04 13; and CG 20 37 07 04 or CG 20 37 04 13, or their equivalent. g. All policies, except the Professional Liability Policy, shall apply on a "per project" basis. h. All polices shall contain a waiver of subrogation in favor of the City. i. All policies, except for the Worker's Compensation Policy and the Professional Liability Policy, shall be primary and non-contributory. j. All polices, except the Worker's Compensation Policy, shall insure the defense and indemnity obligations assumed by Consultant under this Agreement. k. Consultant agrees to maintain all coverage required herein throughout the term of the Agreement and for a minimum of two (2) years following City's written acceptance of the Work. I. It shall be Consultant's responsibility to pay any retention or deductible for the coveraeges required herein. m. All policies shall contain a provision or endorsement that coverages afforded thereunder shall not be cancelled or non-renewed or restrictive modifications added, without thirty (30) days' prior notice to the City, except that if the cancellation or non- renewal is due to non-payment, the coverages may not be terminated or non- renewed without ten (10) days' prior notice to the City. n. Consultant shall maintain in effect all insurance coverages required under this Paragraph at Consultant's sole expense and with insurance companies licensed to Standard Agreement for Professional Services 2014.04 Page 5 of 8 do business in the state in Minnesota and having a current A.M. Best rating of no less than A-, unless specifically accepted by City in writing. o. A copy of the Consultant's Certificate of Insurance which evidences the compliance with this Paragraph, must be filed with City prior to the start of Consultant's Work. Upon request a copy of the Consultant's insurance declaration page, Rider and/or Endorsement, as applicable shall be provided. Such documents evidencing Insurance shall be in a form acceptable to City and shall provide satisfactory evidence that Consultant has complied with all insurance requirements. Renewal certificates shall be provided to City prior to the expiration date of any of the required policies. City will not be obligated, however, to review such Certificate of Insurance, declaration page, Rider, Endorsement or certificates or other evidence of insurance, or to advise Consultant of any deficiencies in such documents and receipt thereof shall not relieve Consultant from, nor be deemed a waiver of, City's right to enforce the terms of Consultant's obligations hereunder. City reserves the right to examine any policy provided for under this paragraph. p. Effect of Consultant's Failure to Provide Insurance. If Consultant fails to provide the specified insurance, then Consultant will defend, indemnify and hold harmless the City, the City's officials, agents and employees from any loss, claim, liability and expense (including reasonable attorney's fees and expenses of litigation) to the extent necessary to afford the same protection as would have been provided by the specified insurance. Except to the extent prohibited by law, this indemnity applies regardless of any strict liability or negligence attributable to the City (including sole negligence) and regardless of the extent to which the underlying occurrence (i.e., the event giving rise to a claim which would have been covered by the specified insurance) is attributable to the negligent or otherwise wrongful act or omission (including breach of contract) of Consultant, its subcontractors, agents, employees or delegates. Consultant agrees that this indemnity shall be construed and applied in favor of indemnification. Consultant also agrees that if applicable law limits or precludes any aspect of this indemnity, then the indemnity will be considered limited only to the extent necessary to comply with that applicable law. The stated indemnity continues until all applicable statutes of limitation have run. If a claim arises within the scope of the stated indemnity, the City may require Consultant to: i. Furnish and pay for a surety bond, satisfactory to the City, guaranteeing performance of the indemnity obligation; or ii. Furnish a written acceptance of tender of defense and indemnity from Consultant's insurance company. Consultant will take the action required by the City within fifteen (15) days of receiving notice from the City. 13. Indemnification. Consultant will defend and indemnify City, its officers, agents, and employees and hold them harmless from and against all judgments, claims, damages, costs and expenses, including a reasonable amount as and for its attorney's fees paid, incurred or for which it may be liable resulting from any breach of this Agreement by Consultant, its agents, contractors and employees, or any negligent or intentional act or omission performed, taken or not performed or taken by Consultant, its agents, contractors and employees, relative to this Agreement. City will indemnify and hold Standard Agreement for Professional Services 2014.04 Page 6 of 8 Consultant harmless from and against any loss for injuries or damages arising out of the negligent acts of the City, its officers, agents or employees. 14. Ownership of Documents. All plans, diagrams, analyses, reports and information generated in connection with the performance of the Agreement ("Information") shall become the property of the City, but Consultant may retain copies of such documents as records of the services provided. The City may use the Information for its purposes and the Consultant also may use the Information for its purposes. Use of the Information for the purposes of the project contemplated by this Agreement ("Project") does not relieve any liability on the part of the Consultant, but any use of the Information by the City or the Consultant beyond the scope of the Project is without liability to the other, and the party using the Information agrees to defend and indemnify the other from any claims or liability resulting therefrom. 15. Non-Discrimination. During the performance of this Agreement, the Consultant shall not discriminate against any employee or applicants for employment because of race, color, creed, religion, national origin, sex, marital status, status with regard to public assistance, disability, sexual orientation or age. The Consultant shall post in places available to employees and applicants for employment, notices setting forth the provision of this non-discrimination clause and stating that all qualified applicants will receive consideration for employment. The Consultant shall incorporate the foregoing requirements of this paragraph in all of its subcontracts for program work, and will require all of its subcontractors for such work to incorporate such requirements in all subcontracts for program work. The Consultant further agrees to comply with all aspects of the Minnesota Human Rights Act, Minnesota Statutes 363.01, et. seq., Title VI of the Civil Rights Act of 1964, and the Americans with Disabilities Act of 1990. 16. Compliance with Laws and Regulations. In providing services hereunder, the Consultant shall abide by statutes, ordinances, rules, and regulations pertaining to the provisions of services to be provided. Any violation of statutes, ordinances, rules and regulations pertaining to the services to be provided shall constitute a material breach of this Agreement and entitle the City to immediately terminate this Agreement. 17. Mediation. Each dispute, claim or controversy arising from or related to this agreement shall be subject to mediation as a condition precedent to initiating arbitration or legal or equitable actions by either party. Unless the parties agree otherwise, the mediation shall be in accordance with the Commercial Mediation Procedures of the American Arbitration Association then currently in effect. A request for mediation shall be filed in writing with the American Arbitration Association and the other party. No arbitration or legal or equitable action may be instituted for a period of 90 days from the filing of the request for mediation unless a longer period of time is provided by agreement of the parties. Cost of mediation shall be shared equally between the parties. Mediation shall be held in the City of Eden Prairie unless another location is mutually agreed upon by the parties. The parties shall memorialize any agreement resulting from the mediation in a mediated settlement agreement, which agreement shall be enforceable as a settlement in any court having jurisdiction thereof. 18. Assignment. Neither party shall assign this Agreement, nor any interest arising herein, without the written consent of the other party. Standard Agreement for Professional Services 2014.04 Page 7 of 8 19. Services Not Provided For. No claim for services furnished by the Consultant not specifically provided for herein shall be honored by the City. 20. Severability. The provisions of this Agreement are severable. If any portion hereof is, for any reason, held by a court of competent jurisdiction to be contrary to law, such decision shall not affect the remaining provisions of this Agreement. 21. Entire Agreement. The entire agreement of the parties is contained herein. This Agreement supersedes all oral agreements and negotiations between the parties relating to the subject matter hereof as well as any previous agreements presently in effect between the parties relating to the subject matter hereof. Any alterations, amendments, deletions, or waivers of the provisions of this Agreement shall be valid only when expressed in writing and duly signed by the parties, unless otherwise provided herein. 22. Waiver. Any waiver by either party of a breach of any provisions of this Agreement shall not affect, in any respect, the validity of the remainder of this Agreement. 23. Governing Law. This Agreement shall be controlled by the laws of the State of Minnesota. 24. Conflicts. No salaried officer or employee of the City and no member of the Council of the City shall have a financial interest, direct or indirect, in this Agreement. The violation of this provision renders the Agreement void. 25. Counterparts. This Agreement may be executed in multiple counterparts, each of which shall be considered an original. Executed as of the day and year first written above. CITY OF EDEN PRAIRIE Nancy Tyra-Lukens, its Mayor Rick Getschow, its City Manager WELSH ARCHITECTURE By: Its: Standard Agreement for Professional Services 2014.04 Page 8 of 8 CITY COUNCIL AGENDA DATE: SECTION: Consent Agenda January 19, 2016 DEPARTMENT/DIVISION: ITEM DESCRIPTION: ITEM NO.: Rick Wahlen Approve Professional Services Agreement VIII.B. Public Works/Utilities with KLM Engineering Inc for Engineering and Inspection Services of the Town Center Water Tower Recoating Project Requested Action Move to: Approve Professional Services Agreement with KLM Engineering, Inc., for Preparing Plans and Specifications, Project Administration, Engineering, and Inspection Services for the Sandblasting and Recoating of the Town Center Water Tower. Synopsis Eden Prairie Utilities received proposals from KLM Engineering, Kollmer Consulting, WSB Engineering, and Bolton and Menk Engineering. for consulting services for this project. The evaluation of the firms' performance for this project was based on statements of qualifications, reviews of similarly sized jobs performed by the consultants, interviews with prior customers, and past experience working with the City of Eden Prairie. The attached professional services agreement provides for design, bidding, construction, inspection, and post construction engineering services for the project at a cost not to exceed $106,588. Background Information Eden Prairie's Town Center water tower was constructed in 1996 and has not been repainted since it was constructed. The project is estimated to cost over 1 million dollars and is best planned and managed by a consulting firm specializing in water supply tank restoration. This project was identified in the utility's capital improvement plan/budget and will be paid from the Water Utility Fund. Attachments • Professional Services Agreement with KLM Engineering, Inc. • Exhibit"A" Scope of Work Standard Agreement for Professional Services This Agreement ("Agreement") is made on the 11th day of January , 20 16 , between the City of Eden Prairie , Minnesota ( hereinafter " City") , whose business address is 8080 Mitchell Road , Eden Prairie , MN 55344 , and KLM Engineering , Inc . , a Minnesota Corporation hereinafter " Consultant") whose business address is 3394 Lake Elmo Avenue North , Lake Elmo , Minnesota 55042 . Preliminary Statement The City has adopted a policy regarding the selection and hiring of consultants to provide a variety of professional services for City projects . That policy requires that persons , firms or corporations providing such services enter into written agreements with the City . The purpose of this Agreement is to set forth the terms and conditions for the provision of professional services by Consultant for the Engineering , Consulting , and Inspection Services for the Town Center (formerly Market Center) Water Tower Recoatinq Project hereinafter referred to as the "Work" . The City and Consultant agree as follows : 1 . Scope of Work. The Consultant agrees to provide the professional services shown in Exhibit A ( Scope of Work ) in connection with the Work . The terms of this Agreement shall take precedence over any provisions of the Consultants proposal and/or general conditions . If the Consultants proposal is attached as the Exhibit A Scope of Work, City reserves the right to reject any general conditions in such proposal . 2 . Term. The term of this Agreement shall be from January 19 , 2016 through January 18 , 2017 the date of signature by the parties notwithstanding . This Agreement may be extended upon the written mutual consent of the parties for such additional period as they deem appropriate , and upon the terms and conditions as herein stated . 3 . Compensation for Services. City agrees to pay the Consultant on an hourly basis plus expenses in a total amount not to exceed $ 106 , 588 . 00 for the services as described in Exhibit A . A . Any changes in the scope of the work which may result in an increase to the compensation due the Consultant shall require prior written approval by an authorized representative of the City or by the City Council . The City will not pay additional compensation for services that do not have prior written authorization . B . Special Consultants may be utilized by the Consultant when required by the complex or specialized nature of the Project and when authorized in writing by the City . C . If Consultant is delayed in performance due to any cause beyond its reasonable control , including but not limited to strikes , riots , fires , acts of God , governmental actions , actions of a third party , or actions or inactions of City , the time for performance shall be extended by a period of time lost by reason of the delay . Consultant will be entitled to payment for its reasonable additional charges , if any , due to the delay . 4 . City Information. The City agrees to provide the Consultant with the complete information concerning the Scope of the Work and to perform the following services : A . Access to the Area . Depending on the nature of the Work , Consultant may from time to time require access to public and private lands or property . As may be necessary , the City shall obtain access to and make all provisions for the Consultant to enter upon public and private lands or property as required for the Consultant to perform such services necessary to complete the Work . B . Consideration of the Consultant' s Work. The City shall give thorough consideration to all reports , sketches , estimates , drawings , and other documents presented by the Consultant , and shall inform the Consultant of all decisions required of City within a reasonable time so as not to delay the work of the Consultant . C . Standards . The City shall furnish the Consultant with a copy of any standard or criteria , including but not limited to , design and construction standards that may be required in the preparation of the Work for the Project . D . City' s Representative . A person shall be appointed to act as the City' s representative with respect to the work to be performed under this Agreement . He or she shall have complete authority to transmit instructions , receive information , interpret , and define the City' s policy and decisions with respect to the services provided or materials , equipment , elements and systems pertinent to the work covered by this Agreement . 5 . Method of Payment. The Consultant shall submit to the City , on a monthly basis , an itemized invoice for professional services performed under this Agreement . Invoices submitted shall be paid in the same manner as other claims made to the City for : A . Progress Payment . For work reimbursed on an hourly basis , the Consultant shall indicate for each employee , his or her name , job title , the number of hours worked , rate of pay for each employee , a computation of amounts due for each employee , and the total amount due for each project task. Consultant shall verify all statements submitted for payment in compliance with Minnesota Statutes Sections 471 . 38 and 471 . 391 . For reimbursable expenses , if provided for in Exhibit A , the Consultant shall provide an itemized listing and such documentation as reasonably required by the City . Each invoice shall contain the City' s project number and a progress summary showing the original (or amended ) amount of the contract , current billing , past payments and unexpended balance of the contract . B . Suspended Work. If any work performed by the Consultant is suspended in whole or in part by the City , the Consultant shall be paid for any services set forth on Exhibit A performed prior to receipt of written notice from the City of such suspension . Standard Agreement for Professional Services 2014 . 04 Page 2 of 8 C . Payments for Special Consultants . The Consultant shall be reimbursed for the work of special consultants , as described herein , and for other items when authorized in writing by the City . D . Claims . To receive any payment on this Agreement , the invoice or bill must include the following signed and dated statement : " I declare under penalty of perjury that this account , claim , or demand is just and correct and that no part of it has been paid . " 6 . Project Manager and Staffing. The Consultant has designated Scott Kriese ( Project Supervisor) and Eric Duncan ( Inspector) to serve on the Project . They shall be assisted by other staff members as necessary to facilitate the completion of the Work in accordance with the terms established herein . Consultant may not remove or replace the designated staff from the Project without the approval of the City . 7 . Standard of Care. Consultant shall exercise the same degree of care , skill and diligence in the performance of its services as is ordinarily exercised by members of the profession under similar circumstances in Hennepin County , Minnesota . Consultant shall be liable to the fullest extent permitted under applicable law , without limitation , for any injuries , loss , or damages proximately caused by Consultant' s breach of this standard of care . Consultant shall put forth reasonable efforts to complete its duties in a timely manner. Consultant shall not be responsible for delays caused by factors beyond its control or that could not be reasonably foreseen at the time of execution of this Agreement . Consultant shall be responsible for costs , delays or damages arising from unreasonable delays in the performance of its duties . 8 . Audit Disclosure and Data Practices. Any reports , information , data , etc . given to , or prepared or assembled by the Consultant under this Agreement which the City requests to be kept confidential , shall not be made available to any individual or organization without the City' s prior written approval . The books , records , documents and accounting procedures and practices of the Consultant or other parties relevant to this Agreement are subject to examination by the City and either the Legislative Auditor or the State Auditor for a period of six (6) years after the effective date of this Agreement . This Agreement is subject to the Minnesota Government Data Practice Act , Minnesota Statutes Chapter 13 ( Data Practices Act) . All government data , as defined in the Data Practices Act Section 13 . 02 , Subd 7 , which is created , collected , received , stored , used , maintained , or disseminated by Consultant in performing any of the functions of the City during performance of this Agreement is subject to the requirements of the Data Practice Act and Consultant shall comply with those requirements as if it were a government entity . All subcontracts entered into by Consultant in relation to this Agreement shall contain similar Data Practices Act compliance language . 9 . Termination. This Agreement may be terminated by either party by seven (7 ) days written notice delivered to the other party at the address written above . Upon termination under this provision , if there is no fault of the Consultant , the Consultant shall be paid for services rendered and reimbursable expenses until the effective date of termination . If however , the City terminates the Agreement because the Consultant has failed to perform in accordance with this Agreement , no further payment shall be made to the Consultant , and the City may retain another consultant to undertake or complete the Work identified herein . Standard Agreement for Professional Services 2014 . 04 Page 3 of 8 10 . Subcontractor. The Consultant shall not enter into subcontracts for services provided under this Agreement except as noted in the Scope of Work, without the express written consent of the City . The Consultant shall pay any subcontractor involved in the performance of this Agreement within ten ( 10) days of the Consultant' s receipt of payment by the City for undisputed services provided by the subcontractor. If the Consultant fails within that time to pay the subcontractor any undisputed amount for which the Consultant has received payment by the City , the Consultant shall pay interest to the subcontractor on the unpaid amount at the rate of 1 . 5 percent per month or any part of a month . The minimum monthly interest penalty payment for an unpaid balance of $ 100 or more is $ 10 . For an unpaid balance of less than $ 100 , the Consultant shall pay the actual interest penalty due to the subcontractor. A subcontractor who prevails in a civil action to collect interest penalties from the Consultant shall be awarded its costs and disbursements , including attorney' s fees , incurred in bringing the action . 11 . Independent Consultant. Consultant is an independent contractor engaged by City to perform the services described herein and as such ( i ) shall employ such persons as it shall deem necessary and appropriate for the performance of its obligations pursuant to this Agreement , who shall be employees , and under the direction , of Consultant and in no respect employees of City , and ( ii ) shall have no authority to employ persons , or make purchases of equipment on behalf of City , or otherwise bind or obligate City . No statement herein shall be construed so as to find the Consultant an employee of the City . 12 . Insurance. a . General Liability . Prior to starting the Work , Consultant shall procure , maintain and pay for such insurance as will protect against claims or loss which may arise out of operations by Consultant or by any subcontractor or by anyone employed by any of them or by anyone for whose acts any of them may be liable . Such insurance shall include , but not be limited to , minimum coverages and limits of liability specified in this Paragraph , or required by law. b . Consultant shall procure and maintain the following minimum insurance coverages and limits of liability for the Work: Worker's Compensation Statutory Limits Employer' s Liability $ 500 , 000 each accident $ 500 , 000 disease policy limit $500 , 000 disease each employee Commercial General Liability $ 1 , 500 , 000 property damage and bodily injury per occurrence $2 , 000 , 000 general aggregate $2 , 000 , 000 Products — Completed Operations Aggregate $ 100 , 000 fire legal liability each occurrence $ 5 , 000 medical expense Comprehensive Automobile Standard Agreement for Professional Services 2014 . 04 Page 4 of 8 Liability $ 1 , 000 , 000 combined single limit each accident (shall include coverage for all owned , hired and non - owed vehicles . ) Umbrella or Excess Liability $ 1 , 000 , 000 c . Commercial General Liability . The Commercial General Liability Policy shall be on ISO form CG 00 01 12 07 or CG 00 01 04 13 , or the equivalent . Such insurance shall cover liability arising from premises , operations , independent contractors , products- completed operations , personal and advertising injury , and liability assumed under an insured contract ( including the tort liability of another assumed in a business contract) . There shall be no endorsement or modification of the Commercial General Liability form arising from pollution , explosion , collapse , underground property damage or work performed by subcontractors . d . Professional Liability Insurance . In addition to the coverages listed above , Consultant shall maintain a professional liability insurance policy in the amount of $2 , 000 , 000 . Said policy need not name the City as an additional insured . It shall be Consultant ' s responsibility to pay any retention or deductible for the professional liability insurance . Consultant agrees to maintain the professional liability insurance for a minimum of two (2) years following termination of this Agreement . a Consultant shall maintain " stop gap" coverage if Consultant obtains Workers ' Compensation coverage from any state fund if Employer' s liability coverage is not available . f. All policies , except the Worker' s Compensation Policy , Automobile Policy , and Professional Liability Policy , shall name the " City of Eden Prairie" as an additional insured on ISO forms CG 20 10 07 04 or CG 20 10 04 13 ; and CG 20 37 07 04 or CG 20 37 04 13 , or their equivalent . g . All policies , except the Professional Liability Policy , shall apply on a " per project" basis . h . All polices shall contain a waiver of subrogation in favor of the City . i . All policies , except for the Worker' s Compensation Policy and the Professional Liability Policy , shall be primary and non -contributory . j . All polices ; except the Worker' s Compensation Policy , shall insure the defense and indemnity obligations assumed by Consultant under this Agreement . k . Consultant agrees to maintain all coverage required herein throughout the term of the Agreement and for a minimum of two (2 ) years following City' s written acceptance of the Work . I . It shall be Consultant' s responsibility to pay any retention or deductible for the coveraeges required herein . m . All policies shall contain a provision or endorsement that coverages afforded thereunder shall not be cancelled or non -renewed or restrictive modifications added , Standard Agreement for Professional Services 2014 . 04 Page 5 of 8 without thirty (30) days ' prior notice to the City , except that if the cancellation or non - renewal is due to non - payment , the coverages may not be terminated or non - renewed without ten ( 10) days ' prior notice to the City . n . Consultant shall maintain in effect all insurance coverages required under this Paragraph at Consultant' s sole expense and with insurance companies licensed to do business in the state in Minnesota and having a current A . M . Best rating of no less than A- , unless specifically accepted by City in writing . o . A copy of the Consultant' s Certificate of Insurance which evidences the compliance with this Paragraph , must be filed with City prior to the start of Consultants Work. Upon request a copy of the Consultant ' s insurance declaration page , Rider and/or Endorsement , as applicable shall be provided . Such documents evidencing Insurance shall be in a form acceptable to City and shall provide satisfactory evidence that Consultant has complied with all insurance requirements . Renewal certificates shall be provided to City prior to the expiration date of any of the required policies . City will not be obligated , however, to review such Certificate of Insurance , declaration page , Rider, Endorsement or certificates or other evidence of insurance , or to advise Consultant of any deficiencies in such documents and receipt thereof shall not relieve Consultant from , nor be deemed a waiver of, City' s right to enforce the terms of Consultant ' s obligations hereunder. City reserves the right to examine any policy provided for under this paragraph . p . Effect of Consultant' s Failure to Provide Insurance . If Consultant fails to provide the specified insurance , then Consultant will defend , indemnify and hold harmless the City , the City's officials , agents and employees from any loss , claim , liability and expense ( including reasonable attorney' s fees and expenses of litigation) to the extent necessary to afford the same protection as would have been provided by the specified insurance . Except to the extent prohibited by law, this indemnity applies regardless of any strict liability or negligence attributable to the City ( including sole negligence) and regardless of the extent to which the underlying occurrence (i . e . , the event giving rise to a claim which would have been covered by the specified insurance) is attributable to the negligent or otherwise wrongful act or omission ( including breach of contract) of Consultant , its subcontractors , agents , employees or delegates . Consultant agrees that this indemnity shall be construed and applied in favor of indemnification . Consultant also agrees that if applicable law limits or precludes any aspect of this indemnity , then the indemnity will be considered limited only to the extent necessary to comply with that applicable law. The stated indemnity continues until all applicable statutes of limitation have run . If a claim arises within the scope of the stated indemnity , the City may require Consultant to : i . Furnish and pay for a surety bond , satisfactory to the City , guaranteeing performance of the indemnity obligation ; or ii . Furnish a written acceptance of tender of defense and indemnity from Consultant's insurance company . Consultant will take the action required by the City within fifteen ( 15) days of receiving notice from the City . Standard Agreement for Professional Services 2014 . 04 Page 6 of 8 13 . Indemnification . Consultant will defend and indemnify City , its officers , agents , and e mployees and hold them harmless from and against all judgments , claims , damages , costs and expenses , including a reasonable amount as and for its attorney' s fees paid , incurred or for which it may be liable resulting from any breach of this Agreement by Consultant , its agents , contractors and employees , or any negligent or intentional act or o mission performed , taken or not performed or taken by Consultant , its agents , contractors and employees , relative to this Agreement . City will indemnify and hold Consultant harmless from and against any loss for injuries or damages arising out of the n egligent acts of the City , its officers , agents or employees . 14 . Ownership of Documents. All plans , diagrams , analyses , reports and information generated in connection with the performance of the Agreement (" Information " ) shall become the property of the City , but Consultant may retain copies of such documents as records of the services provided . The City may use the Information for its purposes and the Consultant also may use the Information for its purposes . Use of the Information for the purposes of the project contemplated by this Agreement (" Project" ) does not relieve any liability on the part of the Consultant , but any use of the Information by the City or the Consultant beyond the scope of the Project is without liability to the other, and the party using the Information agrees to defend and indemnify the other from any claims or liability resulting therefrom . 15 . Non-Discrimination. During the performance of this Agreement , the Consultant shall not discriminate against any employee or applicants for employment because of race , color, creed , religion , national origin , sex, marital status , status with regard to public assistance , disability , sexual orientation or age . The Consultant shall post in places available to employees and applicants for employment , notices setting forth the provision of this non-discrimination clause and stating that all qualified applicants will receive consideration for employment . The Consultant shall incorporate the foregoing requirements of this paragraph in all of its subcontracts for program work , and will require all of its subcontractors for such work to incorporate such requirements in all subcontracts for program work . The Consultant further agrees to comply with all aspects of the Minnesota Human Rights Act , Minnesota Statutes 363 . 01 , et . seq . , Title VI of the Civil Rights Act of 1964 , and the Americans with Disabilities Act of 1990 . 16 . Compliance with Laws and Regulations . In providing services hereunder, the Consultant shall abide by statutes , ordinances , rules , and regulations pertaining to the provisions of services to be provided . Any violation of statutes , ordinances , rules and regulations pertaining to the services to be provided shall constitute a material breach of this Agreement and entitle the City to immediately terminate this Agreement . 17 . Mediation . Each dispute , claim or controversy arising from or related to this agreement shall be subject to mediation as a condition precedent to initiating arbitration or legal or equitable actions by either party . Unless the parties agree otherwise , the mediation shall be in accordance with the Commercial Mediation Procedures of the American Arbitration Association then currently in effect . A request for mediation shall be filed in writing with the American Arbitration Association and the other party . No arbitration or legal or equitable action may be instituted for a period of 90 days from the filing of the request for mediation unless a longer period of time is provided by agreement of the parties . Cost of mediation shall be shared equally between the parties . Mediation shall be held in the City of Eden Prairie unless another location is mutually agreed upon by the parties . The parties shall memorialize any agreement resulting from the mediation in a mediated Standard Agreement for Professional Services 2014 . 04 Page 7 of 8 settlement agreement , which agreement shall be enforceable as a settlement in any court having jurisdiction thereof . 18 . Assignment. Neither party shall assign this Agreement , nor any interest arising herein , without the written consent of the other party . 19 . Services Not Provided For. No claim for services furnished by the Consultant not specifically provided for herein shall be honored by the City . 20 . Severability. The provisions of this Agreement are severable . If any portion hereof is , for any reason , held by a court of competent jurisdiction to be contrary to law, such decision shall not affect the remaining provisions of this Agreement . 21 . Entire Agreement. The entire agreement of the parties is contained herein . This Agreement supersedes all oral agreements and negotiations between the parties relating to the subject matter hereof as well as any previous agreements presently in effect between the parties relating to the subject matter hereof . Any alterations , amendments , deletions , or waivers of the provisions of this Agreement shall be valid only when expressed in writing and duly signed by the parties , unless otherwise provided herein . 22 . Waiver. Any waiver by either party of a breach of any provisions of this Agreement shall not affect , in any respect, the validity of the remainder of this Agreement . 23 . Governing Law. This Agreement shall be controlled by the laws of the State of Minnesota . 24 . Conflicts. No salaried officer or employee of the City and no member of the Council of the City shall have a financial interest , direct or indirect , in this Agreement . The violation of this provision renders the Agreement void . 25 . Counterparts. This Agreement may be executed in multiple counterparts , each of which shall be considered an original . Executed as of the day and year first written above . CITY OF EDEN PRAIRIE Mayor City Manager KLM ENGINEERING , INC . By : Shawn Mulhern , President Standard Agreement for Professional Services 2014 . 04 Page 8 of 8 RI, EDEN January 19, 2016 PRAIRIE SCOPE OF WORK ENGINEERING AND INSPECTION SERVICES TOWN CENTER WATER TOWER RECONDITIONING PROJECT The City of Eden Prairie Water Utility, Eden Prairie, MN, hereafter referred to as "City," provides the following scope of work for engineering, consulting, and inspection services for the design and preparation of plans and specifications, and the construction management and field inspection associated with cleaning, repairing and re-coating one (1) 2,000,000 gallon elevated storage water tank located at 8050 Eden Road, Eden Prairie, MN 55344. Please direct questions regarding the project to: Rick Wahlen—Manager (952) 294-5908 rwahlen@edenprairie.org Joe Dusek—Water Superintendent (952) 294- 5902 jdusek@edenprairie.org Page 1 of 8 City of Eden Prairie Water Utility January 19,2016 SCOPE OF WORK—ENGINEERING,CONSULTING,AND INSPECTION SERVICES FOR THE TOWN CENTER WATER TOWER RECONDITIONING PROJECT SCOPE OF WORK The work required of the consultant will include the following items as well as all requirements specified in Attachment A to the City's RFP (Summary of Project and City Expectations): 1. Pre-design Services - The work under this section shall include a review of existing plans, specifications, and antenna attachment conditions for the water storage tank as well as the 2015 Elevated Tank Inspection Report prepared by Badger State Inspections, LLC. 2. Design Services - The work under this section shall include the following: a. The consultant shall prepare and submit the Minnesota Department of Health permit, bid documents, and plans and specifications for the water tower and accessories as follows: i. All civil, structural, mechanical, electrical and instrumentation drawings necessary for the project. ii. Specifications including both General Conditions and Technical Sections. iii. Alternates will be included within the bid concerning reconditioning/painting of the composite concrete column of the water tower. iv. Coordinating and scheduling of work with Owner and contractors to accommodate water system constraints. v. Review of code and regulation compliance relating to work associated with the rehabilitation. vi. Submission of project plans to MDH for approval. The $100 design review fee will be borne by the consultant. b. Provide a final engineering estimate of the painting and reconditioning cost of the tower. c. Provide bidding support services including responding in writing to bidders' questions; preparation of addenda; assisting in receipt of bids; analysis of bids received; recommending in writing the low, qualified bidder; and assisting in award of the construction contract. d. Manage a mandatory pre-bid meeting and site visit, beginning at the Owner's address. 3. Antenna Management Services—This water tower has no commercial antennas. 4. Reconditioning Plans and Specifications - The specifications will include: a. Advertisement for Bids - This section provides a concise project description and meets the requirements for government bidding. The City has a standard advertisement for bids format that must be followed. b. Instructions to Bidders - This section provides precise instructions to bidders regarding Page 2 of 8 City of Eden Prairie Water Utility January 19,2016 SCOPE OF WORK—ENGINEERING,CONSULTING,AND INSPECTION SERVICES FOR THE TOWN CENTER WATER TOWER RECONDITIONING PROJECT requirements to bidding the project such as the City's minimum insurance, payments, time of completion, bidder qualifications, taxes and permits, legal requirements, performance bond and other important project information. The City has a standard Instructions to Bidders format that must be followed. c. Proposal- This section contains the bid proposal, legal requirements, and the bidder and subcontractor qualification forms. d. Project Requirements -This section contains a general description of the project, intent, project schedule, execution of contract documents, notice to proceed,project meetings, work hours, quality assurance, liquidated damages, application for payment, retainage, substantial completion, project close-out and final submittal, final payment application, work to be done by Owner, contractor's use of premises, rejected work and materials and guarantee. e. Technical Specifications - This section provides all of the particulars concerning the project: workmanship, structural modifications, surface repairs, surface preparation, material section and coating application, health and safety requirements,unfavorable weather conditions, clean up and sterilization, repair work, containment plan and environmental regulations, superintendent inspection of work, disposal and required toxicity characteristic leaching procedure (TCLP) testing, and other procedures that must be adhered to in order to maximize project quality. f. Supplemental Conditions - These supplemental conditions amend or supplement the general conditions, and other provisions of the contract documents as required by the Owner or project conditions, including regulatory requirements. g. General Conditions - This section shall include definitions, authority of the engineer/inspector, final inspection procedures, etc... The City has standard General Conditions that must be used. h. Contract Agreement- This section includes the form of agreement between the Owner and the contractor. The City's contract documents must be used. i. Payment and Performance Bond- This section includes the forms for payment and performance bond. The City has standard Payment and Performance Bond documents that must be used. j. Inspection Report- This enclosure gives prospective bidders a clear idea of the condition of the tank and the scope of work involved. The City separately contracted a float-down inspection report that will be provided to each competing contractor. k. Specification Drawings - The drawings include information on existing conditions as well as any required repairs or modifications. Any modifications recommended to the tank design must be documented with appropriate specification drawings for use by the contractor. 1. As-Built Drawings—complete as-built drawings in both printed and digital format must be supplied to the City within 30 days of project completion. Photos of the completed tank showing views of the ladder access systems, manways, manway covers, railings, Page 3 of 8 City of Eden Prairie Water Utility January 19,2016 SCOPE OF WORK—ENGINEERING,CONSULTING,AND INSPECTION SERVICES FOR THE TOWN CENTER WATER TOWER RECONDITIONING PROJECT antenna mounts, painters rails, roof system,piping and valving, etc. will be provided with the as-builts. m. Surface preparation - This section references industry accepted standards such as NACE, SSPC or American Concrete Institute (ACI) for surface preparation requirements. ADDITIONALLY, any special standards that may be required due to the design of the tank or the type of surface preparation equipment used by the contractor will be included. Of special interest is the minimum industry-standard progress acceptable when using various equipment systems, which must be addressed in the specification. Questions that may arise from the contractor after beginning work must be anticipated and answered in this portion of the specification. n. Existing Paint Total Lead Test Results -This section contains the laboratory test results from paint chip testing for lead, chromium or other heavy metals in conformance with State regulations. o. Logo and Lettering- The City is independently contracting the design of a logo system for the tank. The preliminary design will be provided to all competing consultants and all bidders to facilitate the preparation of a cost estimate for the logo . 5. Construction Management- The work included under this section shall include the following: a. Schedule, send notices for, and conduct a pre-bid and preconstruction meeting; distribute minutes. b. Review/approve shop drawings c. Issue contract document clarifications as required d. Process contract change order requests e. Review, correct and approve contractor submitted construction progress schedule f. Process progress pay requests g. Prepare/record drawings to include final as-built drawings h. Monitor Contractor progress for conformance with construction schedule i. Prepare daily inspection records and submit weekly, including the monitoring of environmental weather conditions, conformance to environmental regulations, surface preparation inspection, mixing, thinning and applications of coatings for conformance to specifications and coating manufacture requirements and all other requirements. j. Conduct and report on weekly job-site progress meetings—provide a weekly email Page 4 of 8 City of Eden Prairie Water Utility January 19,2016 SCOPE OF WORK—ENGINEERING,CONSULTING,AND INSPECTION SERVICES FOR THE TOWN CENTER WATER TOWER RECONDITIONING PROJECT summary of progress for all participants, including the information contained in item k below. Consultant will plan for a minimum of one-hour per week for the construction progress meeting and any additional time necessary to prepare for and document the meetings. The weekly progress meetings must be conducted by the Consultant's project manager/supervisor. k. Identify project delays and potential delays to the owner within 24 hours. Document the nature, cause, and facts surrounding each action contributing to the delay, and inform the Contractor in writing when such actions in the opinion of the Consultant should be recorded as responsible for later liquidated damages. All written or verbal requests from the contractor must be answered in writing within 48 hours. 1. Monitor waste generation at job site. Take TCLP samples, submit for testing and report on results. m. Review contractor submitted waste disposal plan, TCLP test results and report findings. n. Conduct any punch-list inspections and final inspection. o. Prepare and execute punch list and project acceptance certificate p. Provide notification to Contractor and Owner of liquidated damages. q. Resolution/negotiation of liquidated damages r. Request final submittal from contractor in conformance with contract documents s. Process final pay request/project close-out t. Process warranty start date to Owner, contractor and surety u. Estimated project management time shall consist of at least 10 hours per week. 6. Warranty Inspection- The consultant selected will provide a warranty inspection prior to the warranty expiration date. The consultant will submit two (2) copies of the warranty report to the City. 7. Engineering Requirements - The work included under this section shall include the following: a. Consultant team must include a Registered Professional Engineer in the State of Minnesota with a minimum of five (5) years-experience in writing plans, specifications and performing inspections on water storage reservoirs. b. Consultant team must include a Registered Structural Engineer in the State of Minnesota with a minimum of five (5) years-experience of structural design on Steel Potable Water Page 5 of 8 City of Eden Prairie Water Utility January 19,2016 SCOPE OF WORK—ENGINEERING,CONSULTING,AND INSPECTION SERVICES FOR THE TOWN CENTER WATER TOWER RECONDITIONING PROJECT Tanks per AWWA D100. c. Consultant team must include staff support to prepare professional construction drawings for the contractor and as-built drawings for the owner within 30 days of final completion. d. Owners Project Completion Report, including as appendices, a digital copy of all inspection logs and daily progress reports. The report shall be a written summary, the format of which shall be determined by the owner, and shall serve as the base document from which the next recoating will be planned. The Report will include the Final Project Inspection Summary which will include a detailed inspection execution matrix for the interior and exterior tank roof section, inner& outer shell, and floor showing locations of low-voltage holiday testing and results of dry film thickness tests. The report will also specifically describe changes made to the tank and equipment including the painters rails and any new man-ways or other steel modifications. e. The ongoing preparation of any documentation necessary to support the owner's defense against potential arbitration or litigation demanded by the contractor. f. The Consultant will submit the Minnesota Department of Health(MDH)permit application on behalf of the City and respond to any questions by the MDH engineering staff to facilitate the granting of the permit. 8. Inspection Services - The work included under this section shall include the following field inspection services meeting the following criteria: a. Inspectors who are NACE (National Association of Corrosion Engineers) Certified or NACE Inspectors who work directly under a NACE Certified Inspector or NACE Corrosion Engineer. b. Coatings Inspector working under the direct supervision of a Registered Professional Structural Engineer. c. Coating Inspectors who are additionally trained and qualified inspectors who have a minimum of five (3) years-experience in climbing, rigging and performing coating inspections on this type of structure are preferred. d. Welding inspectors who are AWS (American Welding Society) Certified Welding Inspectors or are AWS Associate Welding Inspectors. e. Experienced welding inspectors, additionally trained as Level I and Level II NDE Technicians, who have a minimum of(5) five years-experience in climbing, rigging and performing inspections in accordance to the AWWA D100 Standard. f. AWS Certified Welding inspectors working under the direction of a Registered Structural Engineer. Page 6 of 8 City of Eden Prairie Water Utility January 19,2016 SCOPE OF WORK—ENGINEERING,CONSULTING,AND INSPECTION SERVICES FOR THE TOWN CENTER WATER TOWER RECONDITIONING PROJECT g. Estimated inspection time for all competing consultants shall consist of 48 hours per week. h. Inspection services shall include the preparation and coating of all surfaces outlined in the specification within the tank both below and above the water-line, to include surfaces of all structural roof supports and ceiling surfaces, the tank exterior, and any additional piping and equipment included in the project. 9. Special Considerations: a. The Consultant will inspect and approve 100% of all surface preparation prior to painting. b. The Consultant will observe all mixing of paint or provide the owner with a mutually agreed upon plan that ensures qualified, trained contractor staff are doing the paint mixing. c. The Consultant will visually inspect and verify the surface preparation of each roof member, all surfaces of the structural support steel within the roof system, and will perform low-voltage holiday testing of the coating system in these hard-to-reach places. d. All photographs, inspection documents, as-built drawings, meeting minutes, and communications documents will be submitted to the City prior to release of the final pay request. e. The Consultant will itemize fees for invoicing on an hourly basis using the following categories: 1. Direct Inspection Time 2. Meeting Management 3. Report Writing and Preparation of Reports 4. Project Management 5. Clerical Support 6. Specification and Related Documentation Preparation 7. Travel 8. Reimbursable Expenses f. The Consultant will prepare separate invoices as necessary for the hours billable to the contractor for work performed outside the time prescribed in the contract. Invoices will include the following billing categories: 1. Travel 2. Overtime or Extended Time Inspection Services 3. Overtime or Extended Time Project Management 4. Clerical or Administrative Support for Overtime or Extended Time Work Performed Page 7 of 8 CITY COUNCIL AGENDA DATE: SECTION: Consent January 19, 2016 DEPARTMENT/DIVISION: ITEM DESCRIPTION: ITEM NO.: Robert Ellis First Amendment to Cooperative Agreement VIII.C. Public Works Relating to Water, Sanitary and Strom Sewer, Street and Traffic Signals Requested Action Move to: Approve the First Amendment to Cooperative Agreement Relating to Water, Sanitary and Strom Sewer, Street and Traffic Signals Synopsis This amendment will allow the City of Edina to assess delinquent utility bills for properties located in Edina and served by Eden Prairie. Background Information In 1993, the Cities of Edina and Eden Prairie entered into a cooperative agreement for providing services to certain properties within the southeastern edge of the Golden Triangle Area. These properties are officially located in Edina,but logistically it is most efficient for them to be served by Eden Prairie utilities. As such, an agreement was entered into allowing this practice. Unfortunately, the agreement was silent as to collecting on delinquent accounts. This amendment will allow the City of Edina to assess properties within their boundaries when notified by Eden Prairie of delinquent utility accounts. Once assessed, Edina will remit amounts collected to Eden Prairie. Attachment First Amendment to Cooperative Agreement FIRST AMENDMENT TO COOPERATIVE AGREEMENT RELATING TO WATER, SANITARY AND STORM SEWER, STREET,AND TRAFFIC SIGNALS THIS FIRST AMENDMENT TO THE COOPERATIVE AGREEMENT RELATING TO WATER, SANITARY AND STORM SEWER, STREET, AND TRAFFIC SIGNALS ("First Amendment") is made as of the day of , 201 , by and between the City of Edina, a Minnesota municipal corporation ("Edina"), and the City of Eden Prairie, a Minnesota municipal corporation ("Eden Prairie"). WHEREAS, the parties entered into an agreement entitled "Cooperative Agreement relating to Water, Sanitary and Storm Sewer, Street, and Traffic Signals" dated November 1, 1993 ("Agreement"), which agreement sets forth various improvements and the parties' rights, obligations and responsibilities relating to the improvements; WHEREAS, the parties desire to amend the Agreement to address the assessment of delinquent water and sanitary sewer bills. NOW THEREFORE, in consideration of the promises and mutual covenants and provisions hereinafter contained,the parties hereto agree as follows: 1. Paragraph 5 is amended by inserting the following sentences at the end of the paragraph: "Upon notice from Eden Prairie and pursuant to Minn. Stat. Section 444.075, Subd. 3, Edina agrees to promptly certify for collection with real estate taxes all delinquent sewer and water bills for properties located in Edina and served by Eden Prairie. Upon collection by Edina, it shall remit amounts collected to Eden Prairie" 2. Except as amended hereby the Agreement remains in full force and effect. [signatures on following pages] CITY OF EDEN PRAIRIE Nancy Tyra-Lukens, Mayor Rick Getschow, City Manager 2 . - • r • CITY O I James B. ovland, Mayor Sc City ger /1111L- 3 CITY COUNCIL AGENDA DATE: SECTION: Consent Calendar January 19, 2016 DEPARTMENT/DIVISION: ITEM DESCRIPTION: ITEM NO.: Resolution amending Resolution 2016-09 Office of City Manager Meeting Places and Times for Boards and VIII. D. Commissions for 2016 Requested Action Move to: Adopt Resolution amending Resolution 2016-09 Setting Meeting Places and Times for Boards and Commissions for 2016. Synopsis The Board of Appeals and Equalization meeting times will change to April 21 and May 10 due to the schedules of board members. Attachment Resolution CITY OF EDEN PRAIRIE HENNEPIN COUNTY, MINNESOTA RESOLUTION NO. 2016- _ A RESOLUTION AMENDING RESOLUTION NO. 2016-09 DESIGNATING THE OFFICIAL MEETING DATES, TIME AND LOCATION FOR CITY COUNCIL APPOINTED BOARDS & COMMISSIONS IN 2016 BE IT RESOLVED,that the scheduled meeting date for the Board of Appeal and Equalization is changed to April 21 and May 10. ADOPTED by the Eden Prairie City Council this 19h day of January 2016. Nancy Tyra-Lukens, Mayor ATTEST: Kathleen Porta, City Clerk CITY COUNCIL AGENDA DATE: SECTION: Consent Agenda January 19, 2016 DEPARTMENT/DIVISION: ITEM DESCRIPTION: ITEM NO.: Office of City Manager Approve 5th Restated Joint Powers Agreement VIII. E. for SouthWest Transit Requested Action Move to: Adopt motion approving 5th Restated Joint Powers Agreement of SouthWest Transit Commission. Synopsis SouthWest Transit Commission reviewed and recommended that its member Cities approve a 5th Restate Joint Powers Agreement (the "5th JPA"). The substantive changes contained in the 5th JPA are as follows: 1. Provides a structure and process for the addition of new members; 2. Adjusts the rotation of Board members so that a majority of the commission is not replaced in any one year; 3. Provides that the Commission is obligated to defend, indemnify and hold harmless the member cities for all claims arising out of the action or the Board; 4. Clarifies that withdrawal of parties does not affect the duration of the Agreement unless all member cities terminate; 5. Modifies the notice period for a Party electing to withdraw, so that notice must be given in February rather than July; 6. The distribution of assets in the event of a termination of the JPA was modified to take into account the addition of new members; and 7. Other miscellaneous language clarification changes to make the document internally consistent with the new provisions. A summary of the changes as presented to the SouthWest Commission is attached. Attachments Summary of Changes to JPA Fifth Restated Joint Powers Agreement Fifth Restated Joint Powers Agreement with changes SUMMARY OF CHANGES MADE IN FIFTH RESTATED JOINT POWERS AGREEMENT 1. Paragraph 4—Parties. The paragraph was revised to allow for the addition of new members and to set the process for the additional. The paragraph contemplates (i) an agreement for consolidation which shall set forth the times and conditions for adding a new member including but not limited to transfer of transit assets, funding and reserves, timing, branding and marketing, existing contracts and agreements, and withdrawal; (ii) a resolution by the governing body of the proposed new party agreeing to the terms of this Agreement; and (iii) a resolution by the governing body of each Party approving the addition of the new party. The terms and conditions of the consolidation agreement supersede the terms of the JPA Agreement unless specifically stated otherwise. 2. Paragraph 5 —Board of Commissioners. Amendments made to adjust the rotation of members so that a majority of the commission is not replaced in any one year. Each member appoints two persons, one who shall be an elected official and another who may be an elected official or a resident of that member. The At Large Commissioner continues to be appointed by the Board. An at large commissioner may serve no more than one consecutive three year term except that the Board may, in the Board's sole discretion, extend the term for one additional year. Substantively each party may appoint an alternate commissioner for a commissioner who cannot attend a meeting. The alternate shall be the party's city manager, city administrator or chief executive officer. 3. Paragraph 6 —Bond Board. Clarifying language was inserted based on the changes made in paragraph 5 that the Board is by statute required to be made up of only elected officials of the Board. 4. Paragraph 8 (d) — Indemnification. The paragraph was substantively modified so that the parties transfer to the Commission all responsibility for actions taken pursuant to the JPA. The Commission is obligated to defend, indemnify and hold harmless the Parties for all claims arising out of the action or the Board. Language was added consistent with Minnesota Statutes that the JPA does not constitute a waiver of the limitation of liability set forth in Minnesota States. 5. Paragraph 10 — Duration. Withdrawal of parties does not affect the duration of the Agreement unless all Parties terminate. The process of withdrawal was modified so that notice must be given by February 15th rather than July 1st of the year at the end of which the withdrawal is effective. In the event a Party withdrawal or other change renders one or more provisions of this Agreement inapplicable, those inapplicable provisions shall be severed from the Agreement and the balance of the Agreement shall remain in full force and effect. 6. Paragraph 11 — Distribution of Assets. The paragraph was modified to anticipate the process if new members were added. In the event of termination of this Agreement by all Parties, the funds in the Capital Reserve Fund and Development Reserve Fund shall be distributed pro-rata among the Cities of Chaska, Chanhassen and Eden Prairie. All other assets shall be distributed pro-rata among the then existing Parties. No change was made to the provision that if a member withdraws from the JPA in cases where there is not a termination of the Agreement,then that member forfeits all assets contributed to the JPA(unless that topic was otherwise provided for in the consolidation agreement of a new member.) 7. Miscellaneous. Other miscellaneous language changes were made which did not substantively affect the terms of the agreement such as changing "member" to "commissioner" or "person," specifying the need for a quorum, and substituting"entity" for the term"municipality." FIFTH RESTATED JOINT POWERS AGREEMENT THIS FIFTH RESTATED JOINT POWERS AGREEMENT, is made and entered into this day of , 2016, by and between the Cities of Eden Prairie, Chanhassen, and Chaska, all being municipal corporations organized under the laws of the State of Minnesota, pursuant to authority conferred upon the parties by Minnesota Statutes Sections 471.59, 473.384, 473.388, and related statutes. WHEREAS, the Cities of Eden Prairie, Chaska, and Chanhassen completed a Project Study under the Metropolitan Transit Service Demonstration Program, which was established by the Minnesota Legislature under Minnesota Statutes Section 174.265 (1982) (repealed by Laws of Minnesota 1984, Chapter 654, Article 3, Section 153); and WHEREAS, the purpose of the Project Study was to test the efficiency and effectiveness of alternative methods of providing public transit service for communities that are within the metropolitan transit taxing district, but that are not adequately served by existing regular route transit; and WHEREAS, the Replacement Service Program was established by the Minnesota Legislature in 1984 to continue the Metropolitan Transit Service Demonstration Program, under Minnesota Statutes Section 473.388; and WHEREAS, the Minnesota Legislature has authorized and appropriated funding for the Replacement Service Program by means of the Minnesota Vehicle Sales Tax and the Metropolitan Area Transit Account, under Minnesota Statutes Sections 16A.88, 297B.09, 473.388, and related statutes; and WHEREAS, each of the parties hereto entered into a Joint Powers Agreement, dated July 21, 1986, which Joint Powers Agreement has since been restated in 1994, 1996, 2005, and 2012; and WHEREAS, each of the parties hereto desires to enter into this Fifth Restated Joint Powers Agreement and has, through the actions of its respective governing bodies, been duly authorized to enter into this Fifth Restated Joint Powers Agreement ("Agreement") for the purposes hereinafter stated. NOW THEREFORE, BE IT RESOLVED, in consideration of the mutual covenants and agreements contained herein, it is hereby agreed by and between the Cities of Eden Prairie, Chanhassen, and Chaska, through their respective City Councils, that: 1. NAME. The Parties hereto hereby create and establish SouthWest Transit. 2. PURPOSE. The purpose of this Agreement and SouthWest Transit is to (i) provide alternative methods of providing public transit service for the Cities of Eden Prairie, Chanhassen, and Chaska and (ii) contract to provide transit and transit planning services to other entities, as approved by the Commission, pursuant to Minnesota Statutes Sections 16A.88, 471.59, 473.384, and 473.388. 3. DEFINITIONS. (a) "Commission" means the organization created by this Agreement, the full name of which is SouthWest Transit. (b) "Board"means the Board of Commissioners of SouthWest Transit. (c) "Council"means the governing body of a Party to this Agreement. (d) "Party"means any entity which has entered into this Agreement. (e) "Metropolitan Council" means the regional entity established by Minnesota Statutes Section 473.123. 4. PARTIES. The municipalities which are original Parties to this Agreement are Eden Prairie, Chanhassen, and Chaska. No change in governmental boundaries, structure, organizational status or character shall affect the eligibility of any Party listed above to be represented on the Commission so long as such Party continues to exist as a separate political subdivision. After the effective date of this Agreement, an entity may join the Commission upon all of the following: (i) entering into a consolidation agreement or similar agreement with the Commission, which agreement shall set forth the terms and conditions for adding a new party or Parties including but not limited to: transfer of transit assets, funding and reserves, timing, branding and marketing, existing contracts and agreements, and withdrawal; (ii) filing with the Commission of a resolution duly adopted by the governing body of the proposed new party agreeing to the terms of this Agreement, as amended at the time of said filing,; and (iii) the filing of a resolution by the governing body of each Party approving the addition of the new party. All such resolutions shall be attached to and become a part of this Agreement. The terms and conditions of the consolidation or similar agreement shall supersede the terms of this Agreement unless specifically stated otherwise; 5. BOARD OF COMMISSIONERS. (a) Except as otherwise provided under Section 6 hereof, the governing body of the Commission shall be the Board which will consist of two commissioners from each Party and one at large commissioner, all as appointed as set forth below. 2 (b) Party Commissioners. Each Party shall appoint two commissioners one of whom shall be a member of the Party's governing body ("Seat A") and one of whom shall be a member of the party's governing body or a resident who resides in the jurisdiction of that member("Seat B"). A commissioner appointed to Seat A ceases to be a commissioner if the person ceases to be a member of the Party's governing body. A commissioner appointed to Seat B ceases to be a commissioner if the person cease to be a resident of who resides in the jurisdiction of that member. A Party shall appoint a new commissioner in accordance with 5 (b) to serve the remainder of the term created by the vacancy. (c) At Large Commissioner. The Board shall appoint one at large commissioner, which commissioner shall reside or maintain a principal place of business within the jurisdiction of one of the Parties. The at large commissioner shall serve a three year term. An at large commissioner may serve no more than one consecutive term; except that the Board may, in the Board's sole discretion, extend the term for one additional year. (d) Terms. Each party commissioner shall serve a 3 year term on the following schedule: Term 1 —expires December 31, 2015 and every three years thereafter. Term 2—expires December 31, 2016 and every three years thereafter. Term 3 —expires December 31, 2017 and every three years thereafter. The terms shall be assigned as follows: Party Seat Term Party Seat Term Chanhassen A 2 Eden Prairie A 3 B 3 B 1 Chaska A 1 B 2 The commissioner terms of new parties to the Commission shall be assigned using the following system, which shall continue to repeat in the same order if more than four parties are added. Assignment of terms for new Parties after New Party 4 shall continue in the same manner. If multiple Parties are added at one time the Board shall determine the number of each new party for purposes of term assignments. Party Seat Term Party Seat Term New Party 1 A 1 New Party 3 A 2 B 2 B 3 New Party 2 A 3 New Party 4 A 1 B 1 B 2 3 (e) The appointing Party shall determine the seat a commissioner shall fill, provided that every Party shall appoint one Seat A and one Seat B commissioner. In January of each year, or as soon thereafter as the Party commissioners are appointed, the Party shall provide to the Commission in writing the name(s) of the appointed commissioner(s). (f) A commissioner may be removed by the Party appointing the commissioner, or in the case of the at large commissioner by the Board, with or without cause. (g) The commissioners may receive such compensation as is authorized and established by the Board. (h) A majority of the commissioners of the Board shall constitute a quorum of the Board. Attendance by a quorum of the Board shall be necessary for conducting a meeting of the Board. The Board may take action at a meeting at which a quorum is present upon an affirmative vote of the commissioners present unless hereinafter specified otherwise. (i) At the organizational meeting or as soon thereafter as it may be reasonably done, the Board may adopt rules and regulations governing its meetings. Such rules and regulations may be amended from time to time at either a regular or special meeting of the Board provided that at least ten (10) days prior thereto, notice of the proposed amendment has been furnished to each commissioner of the Board. A majority vote of all eligible votes of the then existing commissioners of the Board shall be required to adopt any proposed amendment to such rules and regulations. (j) At the organizational meeting of the Board, and in January of each year thereafter, the Board shall elect a chairperson, a vice chairperson, a secretary, a treasurer, and such other officers as it deems necessary to conduct its business and affairs. The duties of the officers shall be designated in the rules and regulations established by the Board. (k) Each Party may appoint, from time to time, one alternate commissioner, which alternate shall be the Party's city manager, city administrator or chief executive officer. In the event a commissioner appointed by a Party is absent from a meeting of the Board the Party's alternate commissioner may serve as a commissioner for that meeting. 6. BOND BOARD. (a) There is hereby established the SouthWest Transit Bond Board ("Bond Board"). The Bond Board shall consist of the Seat A commissioner from each Party. The term of office of each member of the Bond Board shall be the same as the member's term on the Board, as described in Section 5(d). 4 (b) In the event the member of the Bond Board appointed by a Party is absent from a meeting of the Bond Board, then the Party's Seat B commissioner, if a member of the Party's governing body, may serve as a member of the Bond Board for that meeting. (c) The Bond Board may issue bonds or obligations on behalf of the Parties, under any law by which any Party may independently issue bonds or obligations, and may use the proceeds of the bonds or obligations to carry out the purposes of the law under which the bonds or obligations are issued; provided that such bonds or obligations shall be issued only to carry out the powers and duties of the Commission described in Section 7 hereof. (d) The Bond Board may issue bonds and obligations only in accordance with express authority granted by the action of the governing bodies of all Parties, which bodies must each approve the Bond Board decision to issue bonds and obligations. The Commission may not pledge the full faith and credit or taxing power of any Party to any bonds or obligations issued by the Bond Board. The bonds or obligations must be issued in the same manner and subject to the same conditions and limitations that would apply if the bonds or obligations were incurred by one of the Parties, provided that any reference to a governmental unit in the statute, law, or charter provision authorizing issuance of the bonds or obligations is considered a reference to the Bond Board. (e) The Bond Board shall have exclusive authority to approve any bonds or obligations of the Commission. (f) A member of the Bond Board may be removed by the Party appointing that member with or without cause; provided that if a member is removed from the Bond Board, that person shall also be deemed removed from the Board; and if a commissioner is removed from the Board, that person shall be deemed removed from the Bond Board. (g) The members of the Bond Board may receive such compensation as is authorized and established by the Bond Board. (h) A majority of the members of the Bond Board shall constitute a quorum of the Bond Board. Attendance by a quorum of the Bond Board shall be necessary for conducting a meeting of the Bond Board. The Bond Board may take action at a meeting at which a quorum is present upon an affirmative vote of a majority of the members present unless hereinafter specified otherwise. (i) At the organizational meeting or as soon thereafter as it may be reasonably done, the Bond Board may adopt rules and regulations governing its meetings. Except as necessary, such rules and regulations shall be identical to the rules and regulations adopted by the Board under Section 5(i). Such rules and regulations 5 may be amended from time to time at either a regular or special meeting of the Bond Board provided that at least ten (10) days prior thereto, notice of the proposed amendment has been furnished to each member of the Bond Board. A majority vote of all eligible votes of the then existing members of the Bond Board shall be required to adopt any proposed amendment to such rules and regulations. (j) At the organizational meeting of the Bond Board, and in January of each year thereafter, the Bond Board shall elect a chairperson, a vice chairperson, a secretary-treasurer, and such other officers as it deems necessary to conduct its business and affairs. The duties of the officers shall be designated in the rules and regulations established by the Bond Board. (k) Notices of meetings of the Bond Board shall be provided to all members of the Bond Board and to all members of the Board. (1) Commissioners of the Board who are not members of the Bond Board shall have the right to attend meetings of the Bond Board. Nothing in this Section 6(1) shall be construed to vest in anyone, other than a person duly designated pursuant to Section 6(a) or Section 6(b), the right to vote as a member of the Bond Board. (m) The Bond Board shall report its activities and decisions to the Board at the next regularly scheduled meeting of the Board. 7. POWERS AND DUTIES OF THE COMMISSION. (a) The Commission has the powers and duties to establish a program pursuant to Minnesota Statutes Section 473.384 and/or Minnesota Statutes Section 473.388 in order to (i) provide public transit service; and (ii) contract to provide transit and transit planning services to entities as approved by the Commission. The Commission shall have all powers necessary to discharge its duties. (b) The Commission may acquire, own, hold, use, improve, operate, maintain, lease, exchange, transfer, sell, or otherwise dispose of equipment, real or personal property, or property rights as deemed necessary to carry out the purposes of the Commission. (c) The Commission may enter into such contracts with such persons or entities, public or private, to carry out the purposes of the Commission. The Commission may, if deemed necessary, contract for and purchase such services, equipment, and functions as the Board deems necessary for the protection of the Commission and the Parties. The Commission has authority to issue obligations in accordance with Minnesota Statutes Chapter 475. (d) The Commission may establish bank accounts, both savings and checking, as the Board shall from time to time determine. 6 (e) The Commission may employ a Chief Executive Officer/General Manager, whose duties shall be to have general management authority over administration of all of the business and affairs of the Commission, including, but not limited to: administration of the transit system or systems provided by the Commission; contracts for transportation service; marketing and promotion of such services, as well as recommendations for changes or additions to the transportation services provided; day-to-day operations of the Commission; administration of all personnel matters including hiring, discipline and termination; attendance at all Commission meetings; preparation and submission to the Board of the annual budget; and provision of advice to the Board as to the financial condition and needs of the Commission. The Chief Executive Officer/General Manager shall perform such other duties and functions as may be required from time to time by the Board. The Chief Executive Officer/General Manager shall sign and execute such contracts, agreements, and other documents and instruments made by or on behalf of and approved by the Commission. The Chief Executive Officer/General Manager shall be an employee of the Commission. Compensation of the Chief Executive Officer/General Manager shall be established by the Board. (f) The Commission may enter into employment contracts with other personnel and may provide for compensation, insurance, benefits, and other terms and conditions that it deems necessary. (g) The Commission may, in lieu of directly operating a public transit system or any part thereof, enter into a contract for management services. The contract may provide for compensation, incentive fees, the employment of personnel, and other terms and conditions that the Commission deems proper. (h) The Commission may sue or be sued. (i) The Commission may accept any gifts, grants, or loans of money or other property from the United States, the state, or any person or entity; may enter into any agreement required in connection therewith; may comply with any federal or state laws or regulations applicable thereto; and may hold, use, and dispose of the money or property in accordance with the terms of the gift, grant, loan, or agreement. (j) The Commission shall provide any Party with data and information requested by the Party in accordance with law. The Commission shall prepare such reports, either financial or management, as required by the Metropolitan Council or other governmental units. (k) The Commission shall cause to be made an annual audit of the books and accounts of the Commission and shall make and file the report to the Parties at least once each year, which report shall contain such information as good accounting practices require and such further information as required by the Metropolitan Council or other governmental units. 7 (1) The Commission shall maintain books, reports, and records of its business and affairs which shall be available for and open to inspection by the Parties at all reasonable times. (m) The Commission may contract to purchase services from any one of the Parties. (n) The Commission may finance the acquisition of any real or personal property under a lease-purchase agreement pursuant to Minnesota Statutes Section 465.71, including without limitation through issuance of certificates of participation in such lease (together, a "Financing Lease"); and each Party hereby expressly approves and authorizes any Financing Lease entered into by the Commission on behalf of the Parties. 8. OPERATING COSTS, BUDGET, AND FINANCIAL LIABILITY. (a) Operating Costs. Operating costs shall include all non-capital costs for the maintenance and operation of the transit system, including, but not limited to, gasoline, oil, lubricants, parts, repairs, labor, and service for any vehicles employed in such operation; insurance premiums; salaries and other direct payments for work or labor in performance of the services furnished by the transit system; indirect costs incurred in the employment of persons for the performance of such services, such as taxes, unemployment compensation, workers' compensation, insurance benefits paid to or accrued for such employees, and any other costs attributable to such employment; and any expenses incurred in connection with contracts for management services. (b) Budget. The Commission shall have a fiscal year beginning January 1 and ending December 31. The Chief Executive Officer/General Manager shall annually prepare an estimated budget for the next fiscal year including an estimate of capital expenditures, operating costs, and revenues. Estimated capital expenditures and operating costs shall be limited to revenues received pursuant to Minnesota Statutes Sections 16A.88, 297B.09, 473.384, 473.388, and 473.39 and estimated revenues to be received from the operation of the transit system. The Board shall review and approve or disapprove the budget. One-twelfth (1/12) of the estimated annual budget shall constitute the estimated monthly budget. The estimated annual and monthly budgets may be adjusted from time to time on the basis of actual costs incurred or changes in estimated revenue. In the event of an adjustment of the budget, there shall be furnished to each Party a computation of said adjustment. (c) Financial Liability Limited. A Party's liability by virtue of being a member of the Commission under this Agreement shall be limited to the extent that it shall not result in any indebtedness or the incurrence of any pecuniary liability for which it shall be necessary to levy in any year a rate of taxes higher than the maximum prescribed by law or to do any other thing in violation of Minnesota Statutes 8 Section 275.27 or any other law which shall cause this Agreement to be null and void. Nothing contained in this Agreement shall preclude any Party from providing in any budget for, or making any expenditure, or selling or issuing any bonds, or creating any indebtedness, the payment of principal or interest of which shall require the levy of taxes which levy may or may not be subject to any maximum levy limitation or limitations prescribed by law. Such Party's obligation to levy taxes for payment of and to pay any amount to any other Party, person, or entity from any such tax levy shall be subordinate to, and may occur only after provision is made for, the levy of taxes for and the payment of any such expenditure or indebtedness, the sale of issuance of bonds and the payment of principal or interest thereon. (d) Indemnification Limitation. Except as may be otherwise provided in this Agreement, the Parties hereby transfer to the Commission all responsibility and control for actions taken pursuant to this Agreement. The Commission shall defend, indemnify and hold harmless the Parties, their officers, elected officials, employees, and volunteers, from and against all claims, damages, losses, and expenses, including attorney's fees, arising out of the acts or omissions of the Board or the Bond Board in carrying out the terms of this Agreement or acts or omissions otherwise occurring in the course of carrying out Commission operations. This Agreement does not constitute a waiver of the limitations of liability set forth in Minnesota Statutes, Section 466.04. Nothing herein shall be construed to provide insurance coverage or indemnification to an officer, employee, or volunteer of any Party for any act or omission for which the officer, employee, or volunteer is guilty of malfeasance in office, willful neglect of duty, or bad faith. To the fullest extent permitted by law, actions by the Parties to this Agreement are intended to be and shall be construed as a "cooperative activity" and it is the intent of the Parties that they shall be deemed a "single governmental unit" for the purposes of liability, as set forth in Minnesota Statutes, Section 471.59, Subd. 1 a (a), provided further that for purposes of that statute, each Party to this Agreement expressly declines responsibility for the acts or omissions of another Party. The Parties to this Agreement are not liable for the acts or omissions of another Party to this Agreement except to the extent they have agreed in writing to be responsible for such acts or omissions of the other Parties 9. INSURANCE. The Commission shall provide or cause to be provided motor vehicle liability (other than that applicable to public transit vehicles), general public liability, and public official's liability insurance in such amounts and on such terms as the Commission shall determine, and workers' compensation insurance. The Commission shall also provide or cause to be provided insurance insuring against liability arising out of the ownership and operation of public transit vehicles in such amounts and on such terms as the Commission shall determine. The Commission may also provide insurance for fire, theft, motor vehicle collision insurance, and other insurance relating to any of its property, rights, or revenue, or any other risk or hazard arising from its activities. The 9 Commission may provide for the insuring of its officers or employees against any other liability, risk, or hazard. 10. DURATION OF AGREEMENT. This Agreement shall continue in force from the effective date of this Agreement subject to termination by all Parties. Withdrawal by any Party or Parties shall not affect the duration of this Agreement unless and until all Parties terminate this Agreement and dissolve the Commission. Party withdrawal shall be initiated by serving written notice upon the Commission no later than February 15th of the year at the end of which such Party withdrawal is to be effective. Upon the effective date of such withdrawal, the notice of withdrawal shall be attached to and become a part of this Agreement. Withdrawal from the Agreement by any Party at the end of the calendar year shall not affect the obligation of that Party to perform the Agreement during the period it remains a Party to the Agreement. Withdrawal of any Party or termination of the Agreement by all Parties shall not terminate or limit any liability, contingent, asserted or unasserted, of any Party arising out of that Party's participation in the Agreement. In the event a Party withdrawal or other change renders one or more provisions of this Agreement inapplicable, those inapplicable provisions shall be severed from the Agreement and the balance of the Agreement shall remain in full force and effect. 11. DISTRIBUTION OF ASSETS. In the event of withdrawal of any Party from this Agreement, all of the capital assets, real estate, liquid assets, prepaid expenses and cash utilized by the Commission or its designated management services contractor, which the withdrawing Party may have contributed to shall be forfeited to the Commission. In the event of termination of this Agreement by all Parties, the funds in the Capital Reserve Fund and Development Reserve Fund shall be distributed pro-rata among the Cities of Chaska, Chanhassen and Eden Prairie. In the event of termination of this Agreement by all Parties, all of the capital assets, real estate, liquid assets, prepaid expenses and cash which remain after payment of debts and obligations, except for the Capital Reserve Fund and Development Reserve Fund, shall be distributed pro-rata among the then existing Parties. The amount of the distribution to any Party pursuant to this Agreement shall be reduced by any amounts owed by the Party to the Commission and shall be subject to the Party's continuing liability as set forth in Section 10 hereof. 12. DISPUTE RESOLUTION. If the Parties are unable to agree upon any matter to be decided by the Commission, any Party may submit such unresolved dispute for mediation. If the dispute is not resolved by mediation, any Party may then submit the dispute for arbitration. Any mediation or arbitration shall be conducted in accordance with the commercial arbitration rules and mediation procedures of the American Arbitration Association. The Parties shall share the costs of such mediation or arbitration equally, other than each Party's own expenses incurred in presenting its position 10 during the mediation or arbitration proceedings. In the event any dispute is submitted to arbitration, the Parties agree to be bound by the results of the arbitration. 13. COOPERATION EFFORT. Each of the Parties agrees that it will cooperate fully and in a timely manner to take the actions necessary to facilitate and accomplish the foregoing provisions of this Agreement. 14. EFFECTIVE DATE. This Agreement shall be in full force and effect from and after the date of passage and adoption by the governing body of each Party. IN WITNESS WHEREOF, the undersigned governmental units, by action of their governing bodies, have caused this Agreement to be executed in accordance with the authority of Minnesota Statutes Section 471.59. [SIGNATURE PAGES FOLLOW] 11 FIFTH RESTATED JOINT POWERS AGREEMENT CITY OF CHASKA By Its By Its Approved by the City Council of Chaska this day of , 2015. 12 FIFTH RESTATED JOINT POWERS AGREEMENT CITY OF CHANHASSEN By Its By Its Approved by the City Council of Chanhassen this day of , 2015. 13 FIFTH RESTATED JOINT POWERS AGREEMENT CITY OF EDEN PRAIRIE By Its By Its Approved by the City Council of Eden Prairie this day of , 2015. 14 FOURTI=IFIFTH RESTATED JOINT POWERS AGREEMENT THIS FOURTHFIFTH RESTATED JOINT POWERS AGREEMENT, is made and entered into this day of , 2-0442015, by and between the Cities of Eden Prairie, Chanhassen, and Chaska, all being municipal corporations organized under the laws of the State of Minnesota, pursuant to authority conferred upon the parties by Minnesota Statutes Sections 471.59, 473.384, 473.388, and related statutes. WHEREAS, the Cities of Eden Prairie, Chaska, and Chanhassen completed a Project Study under the Metropolitan Transit Service Demonstration Program, which was established by the Minnesota Legislature under Minnesota Statutes Section 174.265 (1982) (repealed by Laws of Minnesota 1984, Chapter 654, Article 3, Section 153); and WHEREAS, the purpose of the Project Study was to test the efficiency and effectiveness of alternative methods of providing public transit service for communities that are within the metropolitan transit taxing district, but that are not adequately served by existing regular route transit; and WHEREAS, the Replacement Service Program was established by the Minnesota Legislature in 1984 to continue the Metropolitan Transit Service Demonstration Program, under Minnesota Statutes Section 473.388; and WHEREAS, the Minnesota Legislature has authorized and appropriated funding for the Replacement Service Program by means of the Minnesota Vehicle Sales Tax and the Metropolitan Area Transit Account, under Minnesota Statutes Sections 16A.88, 297B.09, 473.388, and related statutes; and WHEREAS, each of the parties hereto entered into a Joint Powers Agreement, dated July 21, 1986, which Joint Powers Agreement has since been restated in 1994, 1996, 2005, and 2-0052012; and WHEREAS, each of the parties hereto desires to enter into this FeurtliFifth Restated Joint Powers Agreement and has, through the actions of its respective governing bodies, been duly authorized to enter into this FourthFifth Restated Joint Powers Agreement ("Agreement") for the purposes hereinafter stated. NOW THEREFORE, BE IT RESOLVED, in consideration of the mutual covenants and agreements contained herein, it is hereby agreed by and between the Cities of Eden Prairie, Chanhassen, and Chaska, through their respective City Councils, that: 1. NAME. The Parties hereto hereby create and establish SouthWest Transit. 2. PURPOSE. The purpose of this Agreement and SouthWest Transit is to (i) provide alternative methods of providing public transit service for the Cities of Eden Prairie, Chanhassen, and Chaska and (ii) contract to provide transit and transit planning services to other entities, as approved by the Commission, pursuant to Minnesota Statutes Sections 16A.88, 471.59, 473.384, and 473.388. 3. DEFINITIONS. (a) "Commission" means the organization created by this Agreement, the full name of which is SouthWest Transit. (b) "Board"means the Board of Commissioners of SouthWest Transit. (c) "Council"means the governing body of a Party to this Agreement. (d) "Party"means any municipalityentity which has entered into this Agreement. (e) "Metropolitan Council" ismeans the regional entity established by Minnesota Statutes Section 473.123. 4. PARTIES. The municipalities which are original partiesParties to this Agreement are Eden Prairie, Chanhassen, and Chaska. No change in governmental boundaries, structure, organizational status or character shall affect the eligibility of any fet4yParty listed above to be represented on the Commission so long as such partyParty continues to exist as a separate political subdivision. After the effective date of this Agreement, an entity may join the Commission upon all of the following: (i) entering into a consolidation agreement or similar agreement with the Commission, which agreement shall set forth the terms and conditions for adding a new party or Parties including but not limited to: transfer of transit assets, funding and reserves, timing, branding and marketing, existing contracts and agreements, and withdrawal; (ii) filing with the Commission of a resolution duly adopted by the governing body of the proposed new party agreeing to the terms of this Agreement, as amended at the time of said filing,; and (iii) the filing of a resolution by the governing body of each Party approving the addition of the new party. All such resolutions shall be attached to and become a part of this Agreement. The terms and conditions of the consolidation or similar agreement shall supersede the terms of this Agreement unless specifically stated otherwise; 5. BOARD OF COMMISSIONERS. (a) Except as otherwise provided under Section 6 hereof, the governing body of the Commission shall be itsthe Board which will consist of seven commissioners. Each Party shall appoint two commissioners ("original commissioners") from 2 each Party and a seventhone at large commissioner will be, all as appointed by-the Board as describedset forth below. Class 1, 2, and 3 commissioners must reside in the City they are appointed to represent. The Class 4 Commissioner shall reside or maintain a principal place of business in one of the Cities which is a Party to this Agreement. (b) There shall be four classes of commissioners. The term of each commissioner in Class 1 shall expire on December 31, 1987, and every three years thereafter. The term of each commissioner in Class 2 shall expire on December 31, 1988, and every three years thereafter. The term of each commissioner in Class 3 shall expire on December 31, 1989, and every three years thereafter. The six original commissioners shall be appointed to Classes 1 through 3 by draw, provided that no two commissioners appointed by a Party shall be members of the same class. At all times two commissioners shall be assigned to Class 1, two commissioners :than be assigned to Class 2, andassigned to Class 3. A seventh commissioner shall be assigned to Class 4 beginning January 1, 1988. As of January 1, 2000 the Class 4 commissioner shall be appointed by the Board. Thereafter the term of the Class 4 commissioner shall expire on December 31, 2003, and every three years thereafter. No Class 4 commissioner shall serve more appointed to the same class as the successor's predecessor. One commissioner appointed by each Party must include a City Council member, inclusive of the Mayor, currently serving in office. A commissioner who is a Council member of a Party shall cease to be a commissioner, even if the term for which the commissioner was appointed has not expired, if(a) the commissioner ceases to be a member of the Council of the appointing Party, and (b) no other Council member of the appointing Party is then a Class 1, 2 or 3 commissioner. In such event, a Council member of the appointing Party shall be appointed by the appointing Party to serve the remainder of the term created by the vacancy. (e(b) Party Commissioners. Each Party shall appoint two commissioners one of whom shall be a member of the Party's governing body ("Seat A") and one of whom shall be a member of the party's governing body or a resident who resides in the jurisdiction of that member("Seat B"). A commissioner appointed to Seat A ceases to be a commissioner if the person ceases to be a member of the Party's governing body. A commissioner appointed to Seat B ceases to be a commissioner if the person cease to be a resident of who resides in the jurisdiction of that member. A Party shall appoint a new commissioner in accordance with 5 (b) to serve the remainder of the term created by the vacancy. (c) At Large Commissioner. The Board shall appoint one at large commissioner, which commissioner shall reside or maintain a principal place of business within the jurisdiction of one of the Parties. The at large commissioner shall serve a three year term. An at large commissioner may serve no more than one 3 consecutive term; except that the Board may, in the Board's sole discretion, extend the term for one additional year. (d) Terms. Each party commissioner shall serve a 3 year term on the following schedule: Term 1 —expires December 31, 2015 and every three years thereafter. Term 2—expires December 31, 2016 and every three years thereafter. Term 3 —expires December 31, 2017 and every three years thereafter. The terms shall be assigned as follows: Party Seat Term Party Seat Term Chanhassen A 2 Eden Prairie A 3 B 3 B 1 Chaska A 1 B 2 The commissioner terms of new parties to the Commission shall be assigned using the following system, which shall continue to repeat in the same order if more than four parties are added. Assignment of terms for new Parties after New Party 4 shall continue in the same manner. If multiple Parties are added at one time the Board shall determine the number of each new party for purposes of term assignments. Party Seat Term Party Seat Term New Party 1 A 1 New Party 3 A 2 B 2 B 3 New Party 2 ' A 3 New Party 4 A 1 B 1 B 2 (e) The appointing Party shall determine the seat a commissioner shall fill, provided that every Party shall appoint one Seat A and one Seat B commissioner. In January of each year, or as soon thereafter as the Party commissioners are appointed, the Party shall provide to the Commission in writing the name(s) of the appointed commissioner(s). (1) A commissioner may be removed by the Party appointing the commissioner, or in the case of the Class 'I at large commissioner by the Board, with or without cause. 1 (dg) The commissioners may receive such compensation as is authorized and established by the Board. (eh) A majority of the memberscommissioners of the Board shall constitute a quorum of the Board. Attendance by a quorum of the Board shall be necessary for conducting a meeting of the Board. The Board may take action at a meeting at 4 which a quorum is present upon an affirmative vote of a majority of the quorumcommissioners present unless hereinafter specified otherwise. (€i) At the organizational meeting or as soon thereafter as it may be reasonably done, the Board may adopt rules and regulations governing its meetings. Such rules and regulations may be amended from time to time at either a regular or special meeting of the Board provided that at least ten (10) days prior thereto, notice of the proposed amendment has been furnished to each membercommissioner of the Board. A majority vote of all eligible votes of the then existing memberscommissioners of the Board shall be required to adopt any proposed amendment to such rules and regulations. (gj) At the organizational meeting of the Board, and in January of each year thereafter, the Board shall elect a chairperson, a vice chairperson, a secretary, a treasurer, and such other officers as it deems necessary to conduct its business and affairs. The duties of the officers shall be designated in the rules and regulations established by the Board. (hk) Each Party may appoint, from time to time, one alternate commissioner, who which alternate shall be a City Council member, inclusive of the Mayor, currently Party's city manager, city administrator or chief executive officer. In the event a commissioner appointed by a Party is absent from a meeting of the Board, that the Party's alternate commissioner may serve as a commissioner for thethat meeting. 6. BOND BOARD. (a) There is hereby established the SouthWest Transit Bond Board ("Bond Board"). The Bond Board shall consist of three (3) members, each of whom is commissioner of the Board and a member of the respective Party's Council. Each Party shall designate which qualifying individual shall serve on the Bond Board.the Seat A commissioner from each Party. The term of office of each member of the Bond Board shall be the same as the member's term on the Board, as described in Section 5(bd). (b) In the event the member of the Bond Board appointed by a Party is absent from a meeting of the Bond Board, and if the Party has appointed an altcrnatethen the Party's Seat B commissioner pursuant to Section 5(h)„ if a member of the Party's alternate commissionergoverning body, may serve as a member of the Bond Board for thethat meeting. (c) The Bond Board may issue bonds or obligations on behalf of the Parties, under any law by which any Party may independently issue bonds or obligations, and may use the proceeds of the bonds or obligations to carry out the purposes of the law under which the bonds or obligations are issued; provided that such bonds or 5 obligations shall be issued only to carry out the powers and duties of the Commission described in Section 7 hereof. (d) The Bond Board may issue bonds and obligations only in accordance with express authority granted by the action of the governing bodies of all Parties, which bodies must each approve the Bond Board decision to issue bonds and obligations. The Commission may not pledge the full faith and credit or taxing power of any Party to any bonds or obligations issued by the Bond Board. The bonds or obligations must be issued in the same manner and subject to the same conditions and limitations that would apply if the bonds or obligations were incurred by one of the Parties, provided that any reference to a governmental unit in the statute, law, or charter provision authorizing issuance of the bonds or obligations is considered a reference to the Bond Board. (e) The Bond Board shall have exclusive authority to approve any bonds or obligations of the Commission. (f) A member of the Bond Board may be removed by the Party appointing that member with or without cause; provided that if a member is removed from the Bond Board, that memberperson shall also be deemed removed from the Board; and if a membercommissioner is removed from the Board, that person shall be deemed removed from the Bond Board. (g) The members of the Bond Board may receive such compensation as is authorized and established by the Bond Board. (h) A majority of the members of the Bond Board shall constitute a quorum of the Bond Board. Attendance by a quorum of the Bond Board shall be necessary for conducting a meeting of the Bond Board. The Bond Board may take action at a meeting at which a quorum is present upon an affirmative vote of a majority of the quorum members present unless hereinafter specified otherwise. (i) At the organizational meeting or as soon thereafter as it may be reasonably done, the Bond Board may adopt rules and regulations governing its meetings. Except as necessary, such rules and regulations shall be identical to the rules and regulations adopted by the Board under Section 5(fi). Such rules and regulations may be amended from time to time at either a regular or special meeting of the Bond Board provided that at least ten (10) days prior thereto, notice of the proposed amendment has been furnished to each member of the Bond Board. A majority vote of all eligible votes of the then existing members of the Bond Board shall be required to adopt any proposed amendment to such rules and regulations. (j) At the organizational meeting of the Bond Board, and in January of each year thereafter, the Bond Board shall elect a chairperson, a vice chairperson, a secretary-treasurer, and such other officers as it deems necessary to conduct its 6 business and affairs. The duties of the officers shall be designated in the rules and regulations established by the Bond Board. (k) Notices of meetings of the Bond Board shall be provided to all members of the Bond Board and to all members of the Board. (1) MembersCommissioners of the Board who are not members of the Bond Board shall have the right to attend meetings of the Bond Board. Nothing in this Section 6(1) shall be construed to vest in anyone, other than a person duly designated pursuant to Section 6(a) or Section 6(b), the right to vote as a member of the Bond Board. (m) The Bond Board shall report its activities and decisions to the Board at the next regularly scheduled meeting of the Board. 7. POWERS AND DUTIES OF THE COMMISSION. (a) The Commission has the powers and duties to establish a program pursuant to Minnesota Statutes Section 473.384 and/or Minnesota Statutes Section 473.388 in order to (i) provide public transit service; and (ii) contract to provide transit and transit planning services to entities as approved by the Commission. The Commission shall have all powers necessary to discharge its duties. (b) The Commission may acquire, own, hold, use, improve, operate, maintain, lease, exchange, transfer, sell, or otherwise dispose of equipment, real or personal property, or property rights as deemed necessary to carry out the purposes of the Commission. (c) The Commission may enter into such contracts with such persons or corporationsentities, public or private, to carry out the purposes of the Commission. The Commission may, if deemed necessary, contract for and purchase such services, equipment, and functions as the Board deems necessary for the protection of the Commission and the Parties. The Commission has authority to issue obligations in accordance with Minnesota Statutes Chapter 475. (d) The Commission may establish bank accounts, both savings and checking, as the Board shall from time to time determine. (e) The Commission may employ a Chief Executive Officer/General Manager, whose duties shall be to have general management authority over administration of all of the business and affairs of the Commission, including, but not limited to: administration of the transit system or systems provided by the Commission; contracts for transportation service; marketing and promotion of such services, as well as recommendations for changes or additions to the transportation services provided; day-to-day operations of the Commission; administration of all personnel matters including hiring, discipline and termination; attendance at all 7 Commission meetings; preparation and submission to the Board of the annual budget; and provision of advice to the Board as to the financial condition and needs of the Commission. The Chief Executive Officer/General Manager shall perform such other duties and functions as may be required from time to time by the Board. The Chief Executive Officer/General Manager shall sign and execute such contracts, agreements, and other documents and instruments made by or on behalf of and approved by the Commission. The Chief Executive Officer/General Manager shall be an employee of the Commission. Compensation of the Chief Executive Officer/General Manager shall be established by the Board. (f) The Commission may enter into employment contracts with other personnel and may provide for compensation, insurance, benefits, and other terms and conditions that it deems necessary. (g) The Commission may, in lieu of directly operating a public transit system or any part thereof, enter into a contract for management services. The contract may provide for compensation, incentive fees, the employment of personnel, and other terms and conditions that the Commission deems proper. (h) The Commission may sue or be sued. (i) The Commission may accept any gifts, grants, or loans of money or other property from the United States, the state, or any person or entity; may enter into any agreement required in connection therewith; may comply with any federal or state laws or regulations applicable thereto; and may hold, use, and dispose of the money or property in accordance with the terms of the gift, grant, loan, or agreement. (j) The Commission shall provide any Party with data and information requested by the Party in accordance with law. The Commission shall prepare such reports, either financial or management, as required by the Metropolitan Council or other governmental units. (k) The Commission shall cause to be made an annual audit of the books and accounts of the Commission and shall make and file the report to the Parties at least once each year, which report shall contain such information as good accounting practices require and such further information as required by the Metropolitan Council or other governmental units. (1) The Commission shall maintain books, reports, and records of its business and affairs which shall be available for and open to inspection by the Parties at all reasonable times. (m) The Commission may contract to purchase services from any one of the Parties. 8 (n) The Commission may finance the acquisition of any real or personal property under a lease-purchase agreement pursuant to Minnesota Statutes Section 465.71, including without limitation through issuance of certificates of participation in such lease (together, a "Financing Lease"); and each Party hereby expressly approves and authorizes any Financing Lease entered into by the Commission on behalf of the Parties. 8. OPERATING COSTS, BUDGET, AND FINANCIAL LIABILITY. (a) Operating Costs. Operating costs shall include all non-capital costs for the maintenance and operation of the transit system, including, but not limited to, gasoline, oil, lubricants, parts, repairs, labor, and service for any vehicles employed in such operation; insurance premiums; salaries and other direct payments for work or labor in performance of the services furnished by the transit system; indirect costs incurred in the employment of persons for the performance of such services, such as taxes, unemployment compensation, workers' compensation, insurance benefits paid to or accrued for such employees, and any other costs attributable to such employment; and any expenses incurred in connection with contracts for management services. (b) Budget. The Commission shall have a fiscal year beginning January 1 and ending December 31. The Chief Executive Officer/General Manager shall annually prepare an estimated budget for the next fiscal year including an estimate of capital expenditures, operating costs, and revenues. Estimated capital expenditures and operating costs shall be limited to revenues received pursuant to Minnesota Statutes Sections 16A.88, 297B.09, 473.384, 473.388, and 473.39 and estimated revenues to be received from the operation of the transit system. The Board shall review and approve or disapprove the budget. One-twelfth (1/12) of the estimated annual budget shall constitute the estimated monthly budget. The estimated annual and monthly budgets may be adjusted from time to time on the basis of actual costs incurred or changes in estimated revenue. In the event of an adjustment of the budget, there shall be furnished to each Party a computation of said adjustment. (c) Financial Liability Limited. A Party's liability by virtue of being a member of the Commission under this Agreement shall be limited to the extent that it shall not result in any indebtedness or the incurrence of any pecuniary liability for which it shall be necessary to levy in any year a rate of taxes higher than the maximum prescribed by law or to do any other thing in violation of Minnesota Statutes Section 275.27 or any other law which shall cause this Agreement to be null and void. Nothing contained in this Agreement shall preclude any Party from providing in any budget for, or making any expenditure, or selling or issuing any bonds, or creating any indebtedness, the payment of principal or interest of which shall require the levy of taxes which levy may or may not be subject to any maximum levy limitation or limitations prescribed by law. Such Party's obligation to levy taxes for payment of and to pay any amount to any other Party, 9 person, or entity from any such tax levy shall be subordinate to, and may occur only after provision is made for, the levy of taxes for and the payment of any such expenditure or indebtedness, the sale of issuance of bonds and the payment of principal or interest thereon. (d) Indemnification Limitation. The liability of each Party for the acts or omission of another Party is governed by Minnesota Statutes Section 471.59, Subdivision 1 a. Pursuant to Minnesota Statutes Section 471.59, Subdivision la, no Party to this Agreement is liable for the acts or omissions of another Party, unless a Party has agreed in writing to be responsible for the acts or omissions of another Party. This Agreement does not constitute an agreement to be responsible for the acts or omissions of another Party. Except as may be otherwise provided in this Agreement, the Parties hereby transfer to the Commission all responsibility and control for actions taken pursuant to this Agreement. The Commission shall defend, indemnify and hold harmless the Parties, their officers, elected officials, employees, and volunteers, from and against all claims, damages, losses, and expenses, including attorney's fees, arising out of the acts or omissions of the Board or the Bond Board in carrying out the terms of this Agreement or acts or omissions otherwise occurring in the course of carrying out Commission operations. This Agreement does not constitute a waiver of the limitations of liability set forth in Minnesota Statutes, Section 466.04. Nothing herein shall be construed to provide insurance coverage or indemnification to an officer, employee, or volunteer of any Party for any act or omission for which the officer, employee, or volunteer is guilty of malfeasance in office, willful neglect of duty, or bad faith. To the fullest extent permitted by law, actions by the Parties to this Agreement are intended to be and shall be construed as a "cooperative activity" and it is the intent of the Parties that they shall be deemed a "single governmental unit" for the purposes of liability, as set forth in Minnesota Statutes, Section 471.59, Subd. 1 a (a), provided further that for purposes of that statute, each Party to this Agreement expressly declines responsibility for the acts or omissions of another Party. The Parties to this Agreement are not liable for the acts or omissions of another Party to this Agreement except to the extent they have agreed in writing to be responsible for such acts or omissions of the other Parties 9. INSURANCE. The Commission shall provide or cause to be provided motor vehicle liability (other than that applicable to public transit vehicles), general public liability, and public officialsofficial's liability insurance in such amounts and on such terms as the Commission shall determine, and workers' compensation insurance. The Commission shall also provide or cause to be provided insurance insuring against liability arising out of the ownership and operation of public transit vehicles in such amounts and on such terms as the Commission shall determine. The Commission may also provide insurance for fire, theft, motor vehicle collision insurance, and other insurance relating to any of its property, rights, or revenue, or any other risk or hazard arising from its activities. The Commission may provide for the insuring of its officers or employees against any other liability, risk, or hazard. 10 10. DURATION OF AGREEMENT. This Agreement shall continue in force from year to year,the effective date of this Agreement subject to withdrawal by a Party or termination by all Parties. Withdrawal by any Party or Parties shall not affect the duration of this Agreement unless and until all Parties terminate this Agreement and dissolve the Commission. Party withdrawal shall be effectedinitiated by serving written notice thereof upon the other Parties Commission no later than July4February 15th of the year at the end of which such Party withdrawal is to be effective. Upon the effective date of such withdrawal, the notice of withdrawal shall be attached to and become a part of this Agreement. Withdrawal from the Agreement by any Party at the end of the calendar year shall not affect the obligation of anythat Party to perform the Agreement for or during the period that it remains a Party to the Agreement is in effect.. Withdrawal of any Party or termination of the Agreement by all Parties shall not terminate or limit any liability, contingent, asserted or unasserted, of any Party arising out of that Party's participation in the AgreementParty's participation in the Agreement. In the event a Party withdrawal or other change renders one or more provisions of this Agreement inapplicable, those inapplicable provisions shall be severed from the Agreement and the balance of the Agreement shall remain in full force and effect. 11. DISTRIBUTION OF ASSETS. In the event of withdrawal of any Party from this Agreement, all of the capital assets, real estate, liquid assets, prepaid expenses and cash utilized by the Commission or its designated management services contractor, which the withdrawing Party may have contributed to i proportionate share, shall be forfeited to the Commission. In the event of termination of this Agreement by all Parties, the funds in the Capital Reserve Fund and Development Reserve Fund shall be distributed pro-rata among the Cities of Chaska, Chanhassen and Eden Prairie. In the event of termination of this Agreement by all Parties, all of the capital assets, real estate, liquid assets, prepaid expenses and cash which remain after payment of debts and obligations shall be distributed among the municipalities who are parties to this Agreement immediately prior to its termination in accordance with the following formula: Each Party shall receive that percentage of remaining assets determined by dividing the total amount the receiving Party contributed to the Commission by the total amount contributed by all the Parties that are parties to this Agreement ediately „ r to its te....v.iration , except for the Capital Reserve Fund and Development Reserve Fund, shall be distributed pro-rata among the then existing Parties. The amount of the distribution to any Party pursuant to this Agreement shall be reduced by any amounts owed by the Party to the Commission and shall be subject to the Party's continuing liability pursuant toas set forth in Section 10 hereof. 12. DISPUTE RESOLUTION. If the Parties are unable to agree upon any matter to be decided by the Commission, any Party may submit such unresolved dispute for mediation. If the dispute is not resolved by mediation, any Party may then submit the dispute for arbitration. Any mediation or arbitration 11 shall be conducted in accordance with the commercial arbitration rules and mediation procedures of the American Arbitration Association. The Parties shall share the costs of such mediation or arbitration equally, other than each Party's own expenses incurred in presenting its position during the mediation or arbitration proceedings. In the event any dispute is submitted to arbitration, the Parties agree to be bound by the results of the arbitration. 13. COOPERATION EFFORT. Each of the Parties agrees that it will cooperate fully and in a timely manner to take the actions necessary to facilitate and accomplish the foregoing provisions of this Agreement. 14. EFFECTIVE DATE. This Agreement shall be in full force and effect from and after the date of passage and adoption by the governing body of each Party. IN WITNESS WHEREOF, the undersigned governmental units, by action of their governing bodies, have caused this Agreement to be executed in accordance with the authority of Minnesota Statutes Section 471.59. [SIGNATURE PAGES FOLLOW] 12 HFIFTH RESTATED JOINT POWERS AGREEMENT CITY OF CHASKA By Its By Its Approved by the City Council of Chaska this day of , 204-2 , 2015. 13 HFIFTH RESTATED JOINT POWERS AGREEMENT CITY OF CHANHASSEN By Its By Its Approved by the City Council of Chanhassen this day of , 204-22015. 14 HFIFTH RESTATED JOINT POWERS AGREEMENT CITY OF EDEN PRAIRIE By Its By Its Approved by the City Council of Eden Prairie this day of , 204-22015. 15 CITY COUNCIL AGENDA DATE: SECTION: Appointments January 19, 2016 DEPARTMENT/DIVISION: ITEM DESCRIPTION: ITEM NO.: Rick Getschow Appoint representative and alternate to VIII.F. City Manager LOGIS Board of Directors Requested Action Move to: Appoint Finance Manager Sue Kotchevar as the Eden Prairie Representative and IT Manager Aditi Salunke as Alternate Representative to the LOGIS Board of Directors. Synopsis LOGIS asks that the Council formally approve the appointments of the representative and alternative representative to the Board anytime there is a staffing change. CITY COUNCIL AGENDA DATE: SECTION: Consent January19, 2016 DEPARTMENT/DIVISION: ITEM DESCRIPTION: ITEM NO.: Community Telecommunications—Sprint—Hold VIII.G. Development/Planning Over Letter for License Agreement at Janet Jeremiah/Steve Durham 8950 Eden Prairie Road, Senior Center Requested Action Move to: Approve the execution of a hold over letter for the License Agreement with Sprint at 8950 Eden Prairie Road subject to Sprint's execution of the hold over letter, with such approval contingent upon execution of the letter by an authorized representative of Sprint. Synopsis The existing License Agreement with Sprint is set to expire on January 25, 2016. The City and Sprint have not yet entered into a new or long term extension of the existing License Agreement. Sprints representatives provided a letter addressing future lease payments during the time that a long term license or extension is negotiated. The extension request did not include coverage of terms and conditions of the existing License Agreement. The City Attorney has amended the letter in the form attached which provides that all the terms, conditions and obligations of the existing License Agreement continue. Recommendation Staff recommends approval of the attached hold over letter request. Attachment Hold over letter for License Agreement 5print ) Sprint—Property Services Mailstop:KSOPHT0101-Z2650 6391 Sprint Parkway Overland Park,KS 66251 (800)357—7641 LandlordSolutions@Sprint.com VIA: Tracking#[Insert tracking#1 January 14,2016 City of Eden Prairie 8080 Mitchell Road Eden Prairie,MN 55344 Attention: City Manager Re: Agreement:License Agreement dated the 16th day of January,2001 Licensor:City of Eden Prairie Licensee:("Sprint"): Sprint Spectrum,LP Sprint Site ID: [Insert Sprint Site ID] Licensee Site ID:Eden Prairie Senior Center Dear Mr.Getschow Sprint would like to thank you for your continued support and partnership in delivering Mobile Data and Voice from Sprint's wireless network. Our records indicate that the above referenced Agreement expires on January 25,2016. A representative of Sprint has been in contact with the City to discuss extending the term of the Agreement.A new agreement has not yet been finalized. Until we are able to find a mutually agreeable solution to our continued relationship,Sprint will continue to make monthly payments in accordance with the rate that is last owed under the Agreement prior to the date of expiration. Once a new agreement is fully executed by Sprint and the City,Sprint will pay any additional amounts due from January 26,2016 under the terms of the new agreement.If the annual license fee is less than what is set out in the existing agreement,no refund is due to Sprint for the period of time between January 26,2016 and the date of the new agreement. This letter further confirms that Sprint will continue to be bound by all the terms and conditions of the License Agreement,until a new agreement is executed or Sprint vacates the Property. I confirm,as evidenced by the attached authorization from Sprint,that I am an authorized representative of Sprint with power and authority to bind Sprint to the terms of this letter. Please have an authorized representative of the City execute the bottom of this letter as an acknowledgment of the terms of this letter and return one copy of the same to Sprint via fax(913-523-9735)or regular mail. Sprint will continue to work expeditiously in good faith with the City to finalize a new license or extension of the existing license agreement. We appreciate your cooperation in this matter. ACKNOWLEDGED AND AGREED TO BY: Sprint Spectrum,LP By: Gary B.Lindsey Real Estate Manager Sprint> ACKNOWLEDGED AND AGREED TO BY: City of Eden Prairie: By: Name:Nancy Tyra-Lukens Title:Mayor Date: January 19,2016 By: Name: Rick Getschow Title: City Manager Date: January 19, 2016 CITY COUNCIL AGENDA DATE: SECTION: Public Hearings January19, 2016 DEPARTMENT/DIVISION: ITEM DESCRIPTION: ITEM NO.: Community Development/Planning Kal Point IX.A. Janet Jeremiah/Julie Klima Requested Action Move to: • Close the Public Hearing; and • Adopt the Resolution for Guide Plan Change from Neighborhood Commercial to Community Commercial on 2.98 acres • Adopt the Resolution for Planned Unit Development Concept Review on 2.98 acres; and • Approve 1st Reading of the Ordinance for Planned Unit Development District Review with waivers, and Zoning District Change from Neighborhood Commercial to Community Commercial 2.98 acres; and • Adopt the Resolution for Preliminary Plat for 3 lots into 2 lots on 2.98 acres; and • Direct Staff to prepare a Development Agreement incorporating Staff and Commission recommendations and Council conditions. Synopsis The proposed project is for the construction of a 20,000 square foot grocery building with a drive through and a multi-tenant retail building of approximately 4,200 square feet. The proposal includes the removal of the existing structures and redeveloping the existing 3 parcels into 2 parcels with shared parking facilities. The proponent is seeking rezoning from Neighborhood Commercial to Community Commercial, as well as, PUD waivers to the parking setback along the common property line and for Floor Area Ration(FAR) and Base Area Ratio (BAR) for Lot 2. Background The structure proposed meets or exceeds the requirements for construction materials on all facades, landscaping for the site, parking provided on site and includes pedestrian connections to Pioneer Trail. The architecture of the building includes varied roof lines and building wall articulations. In addition, the proponent's proposal includes the use of canopies and wall lighting to create additional definition, contrast and interest to the facades of the building. The following PUD waivers are proposed: 1. Side yard parking setback from 10 feet to 0 feet along the common property line. This waiver will allow for cross parking and access within the project area. Cross parking and access agreements will be required prior to release of the building permit. 1 2. Floor Area and Base Area Ratio for Lot 2 of 0.22. City Code allows 0.2. Lot 2 proposes a FAR and BAR of 0.22. Lot 1 provides for a FAR and BAR of less than 0.2 therefore the overall FAR/BAR for the project meets the 0.2 standard. The 120-Day Review Period Expires on March 11, 2016. Planning Commission Review and Recommendation At its December 7, 2015 meeting, the Commission asked that staff to continue to work with the proponent on several issues prior to City Council review. As a result, the following modifications have been made to revised plans received September 22, 2015: 1. Additional architectural detail and enhancements have been provided to west elevation of the multi-tenant retail building to improve the aesthetics. The revisions included changes to the building materials, addition of vertical elements to the roofline, provision of wall details such as lighting, canopies, use of multiple and complimentary colors, and additional landscaping. 2. The landscaping plan has been modified to include the future multi-tenant building and species have been incorporated into the plan that will allow for screening of the parking areas from public roadways. 3. An interim grading plan for Lot 1 has also been provided. The Planning Commission voted 6-0 to recommend approval of the project at the December 7, 2015 meeting. Existing Conditions SIP s ' _..r•n _ _ 2 Proposed Conditions IP IOW 011 rt. al NORTHWEST BIRD'S EYE VIEW Attachments 1. Resolution for Guide Plan Change 2. Resolution for PUD Concept Review 3. Ordinance 4. Resolution for Preliminary Plat 5. December 4, 2015 Staff Report 6. Location Map 7. Land Use Map 8. Zoning Map 9. Aerial photo 10. December 7, 2015 Planning Commission Minutes 3 CITY OF EDEN PRAIRIE HENNEPIN COUNTY, MINNESOTA RESOLUTION NO. 2016- _ A RESOLUTION AMENDING THE COMPREHENSIVE MUNICIPAL PLAN WHEREAS,the City of Eden Prairie has prepared and adopted the Comprehensive Municipal Plan ("Plan"); and WHEREAS,the Plan has been submitted to the Metropolitan Council for review and comment; and WHEREAS,the proposal of Kal Point, by Kal Stay LLC is for a Comprehensive Guide Plan Change from Neighborhood Commercial to Community Commercial on 2.98 acres, as legally described on Exhibit A. NOW, THEREFORE,BE IT RESOLVED that the City Council of the City of Eden Prairie, Minnesota, hereby adopts the amendment of the Plan based on plans stamped dated December 21, 2015 and the staff report dated December 7, 2015 and subject to Metropolitan Council approval. ADOPTED by the City Council of the City of Eden Prairie this 19th day of January, 2016. Nancy Tyra-Lukens, Mayor ATTEST: Kathleen Porta, City Clerk EXHIBIT A COMPREHENSIVE PLAN AMENDMENT- KAL POINT Legal Description: Parcel 1: Lot 1, Block l, M & K Addition, Hennepin County; Minnesota. Parcel 2: The West 160 feet of the following described property: That part of the East Half of the Northeast Quarter and the Northeast Quarter of the Southeast Quarter of Section 27, Township 116,North of Range 22 West of the Fifth Principal Meridian described as follows: Commencing on the North line of said Section 27 at a point 330 feet West of the Northeast corner of said Section, running thence South parallel with the East line of said Section, 3300 feet to the South line of the North Half of the Northeast Quarter of the Southeast Quarter of said Section 27; thence West 660 feet; thence North 3300 feet; thence East 660 feet to the place of beginning lying North of the North line of the South Quarter of the Northeast Quarter of Section 27 and South of the Southerly line of Registered Land Survey No. 791. Parcel 3: Lot 1, Block 2, Augusta Addition, Hennepin County, Minnesota. CITY OF EDEN PRAIRIE HENNEPIN COUNTY, MINNESOTA RESOLUTION NO. 2016- A RESOLUTION APPROVING THE PLANNED UNIT DEVELOPMENT CONCEPT OF KAL POINT FOR KAL STAY LLC WHEREAS,the City of Eden Prairie has by virtue of City Code provided for the Planned Unit Development(PUD) Concept of certain areas located within the City; and WHEREAS, the Planning Commission did conduct a public hearing on December 7, 2015, on Kal Point by Kal Stay and considered their request for approval of the PUD Concept plan and recommended approval of the request to the City Council; and WHEREAS,the City Council did consider the request on January 19, 2016. NOW, THEREFORE,BE IT RESOLVED by the City Council of Eden Prairie, Minnesota, as follows: 1. Kal Point, being in Hennepin County, Minnesota, legally described as outlined in Exhibit A, is attached hereto and made a part hereof("Property"). 2. That the City Council does grant PUD Concept approval as outlined in the plans stamp dated December 21, 2015. 3. That the PUD Concept meets the recommendations of the Planning Commission dated December 7, 2015. ADOPTED by the City Council of the City of Eden Prairie this 19th day of January, 2016. Nancy Tyra-Lukens, Mayor ATTEST: Kathleen Porta, City Clerk EXHIBIT A PUD Concept- Kal Point Legal Description: Parcel 1: Lot 1, Block 1, M &K Addition, Hennepin County; Minnesota. Parcel 2: The West 160 feet of the following described property: That part of the East Half of the Northeast Quarter and the Northeast Quarter of the Southeast Quarter of Section 27, Township 116,North of Range 22 West of the Fifth Principal Meridian described as follows: Commencing on the North line of said Section 27 at a point 330 feet West of the Northeast corner of said Section, running thence South parallel with the East line of said Section, 3300 feet to the South line of the North Half of the Northeast Quarter of the Southeast Quarter of said Section 27; thence West 660 feet; thence North 3300 feet; thence East 660 feet to the place of beginning lying North of the North line of the South Quarter of the Northeast Quarter of Section 27 and South of the Southerly line of Registered Land Survey No. 791. Parcel 3: Lot 1, Block 2, Augusta Addition, Hennepin County, Minnesota. KAL POINT CITY OF EDEN PRAIRIE HENNEPIN COUNTY, MINNESOTA ORDINANCE NO. -2016-PUD- -2016 AN ORDINANCE OF THE CITY OF EDEN PRAIRIE, MINNESOTA,REMOVING CERTAIN LAND FROM ONE ZONING DISTRICT AND PLACING IT IN ANOTHER, AMENDING THE LEGAL DESCRIPTIONS OF LAND IN EACH DISTRICT,AND, ADOPTING BY REFERENCE CITY CODE CHAPTER 1 AND SECTION 11.99 WHICH,AMONG OTHER THINGS, CONTAIN PENALTY PROVISIONS THE CITY COUNCIL OF THE CITY OF EDEN PRAIRIE, MINNESOTA, ORDAINS: Section 1. That the land which is the subject of this Ordinance (hereinafter, the "land") is legally described in Exhibit A attached hereto and made a part hereof. Section 2. That action was duly initiated proposing that the land be removed from the Neighborhood Commercial Zoning District and be placed in the Community Commercial Zoning District -2016-PUD- -2016 (hereinafter "PUD- -2016-C-COM"). Section 3. The land shall be subject to the terms and conditions of that certain Development Agreement dated as of , 2016 entered into between Kal Stay LLC, and the City of Eden Prairie, (hereinafter"Development Agreement"). The Development Agreement contains the terms and conditions of PUD- -2016- , and are hereby made a part hereof. Section 4. The City Council hereby makes the following findings: A. PUD- -2016- is not in conflict with the goals of the Comprehensive Guide Plan of the City. B. PUD- -2016- is designed in such a manner to form a desirable and unified environment within its own boundaries. C. The exceptions to the standard requirements of Chapters 11 and 12 of the City Code that are contained in PUD- -2016- are justified by the design of the development described therein. D. PUD- -2016- is of sufficient size, composition, and arrangement that its construction, marketing, and operation are feasible as a complete unit without dependence upon any subsequent unit. Section 5. The proposal is hereby adopted and the land shall be, and hereby is removed from the Neighborhood Commercial Zoning District, and placed in the Community Commercial Zoning District and shall be included hereafter in the Planned Unit Development PUD-_-2016- and the legal descriptions of land in each district referred to in City Code Section 11.03, subdivision 1, subparagraph B, shall be and are amended accordingly. Section 6. City Code Chapter 1 entitled"General Provisions and Definitions Applicable to the Entire City Code Including Penalty for Violation" and Section 11.99 entitled "Violation a Misdemeanor" are hereby adopted in their entirety by reference, as though repeated verbatim herein. Section 7. This Ordinance shall become effective from and after its passage and publication. FIRST READ at a regular meeting of the City Council of the City of Eden Prairie on the 19h day of January, 2016, and finally read and adopted and ordered published in summary form as attached hereto at a regular meeting of the City Council of said City on the day of , 2016. ATTEST: Kathleen Porta, City Clerk Nancy Tyra-Lukens, Mayor PUBLISHED in the Eden Prairie News on , 2016. EXHIBIT A Legal Description: Kal Point Parcel 1: Lot 1, Block 1, M &K Addition, Hennepin County; Minnesota. Parcel 2: The West 160 feet of the following described property: That part of the East Half of the Northeast Quarter and the Northeast Quarter of the Southeast Quarter of Section 27, Township 116,North of Range 22 West of the Fifth Principal Meridian described as follows: Commencing on the North line of said Section 27 at a point 330 feet West of the Northeast corner of said Section, running thence South parallel with the East line of said Section, 3300 feet to the South line of the North Half of the Northeast Quarter of the Southeast Quarter of said Section 27; thence West 660 feet; thence North 3300 feet; thence East 660 feet to the place of beginning lying North of the North line of the South Quarter of the Northeast Quarter of Section 27 and South of the Southerly line of Registered Land Survey No. 791. Parcel 3: Lot 1, Block 2, Augusta Addition, Hennepin County, Minnesota. CITY OF EDEN PRAIRIE HENNEPIN COUNTY, MINNESOTA RESOLUTION NO. 2016- RESOLUTION APPROVING THE PRELIMINARY PLAT OF KAL POINT FOR KAL STAY LLC BE IT RESOLVED, by the Eden Prairie City Council as follows: That the preliminary plat of Kal Point for Kal Stay LLC stamp dated December 21, 2015, and consisting of 2.98 acres from 3 lots into 2 lots, a copy of which is on file at the City Hall, is found to be in conformance with the provisions of the Eden Prairie Zoning and Platting ordinances, and amendments thereto, and is herein approved. ADOPTED by the Eden Prairie City Council on the 19th day of January, 2016. Nancy Tyra-Lukens, Mayor ATTEST: Kathleen Porta, City Clerk STAFF REPORT TO: Planning Commission FROM: Julie Klima, City Planner DATE: December 4, 2015 PROJECT: Kal Point LOCATION: 13105, 13075 & 13045 Pioneer Trail APPLICANT: Kalyan Vempaty OWNER: Anchor Bank 120 DAY REVIEW: March 11, 2016 REQUEST: 1. Guide Plan Change from Neighborhood Commercial to Community Commercial on 2.98 acres. 2. Planned Unit Development Concept Review on 2.98 acres 3. Planned Unit Development District Review with waivers on 2.98 acres 4. Zoning District Change from N-COM to C-COM on 2.98 acres 5. Site Plan Review on 2.98 acres 6. Preliminary Plat of three lots into two lots on 2.98 acres BACKGROUND The property is guided for Neighborhood Commercial. Surrounding properties are guided Neighborhood Commercial, Airport, Industrial, Low Density Residential, and Medium Density Residential. The property is zoned Neighborhood Commercial. Surrounding zoning is Rural, R1-13.5, RM- 6.5, Highway Commercial, Airport Commercial, and 12. The request is to reguide and rezone the property to Community Commercial for the construction of a 20,000 square foot retail building with a drive through and future construction of a 4,200 square foot multi-tenant retail building. The property is situated near an arterial roadway and is proximate to property that is currently used for and guided for future commercial use. The property was previously approved for approximately 25,000 square feet of retail development in 2004, however the project was not constructed. Reguiding of the property from Neighborhood Commercial to Community Staff Report—Kal Point December 4, 2015 Page 2 Commercial would have minimal impact to the City's balance of land uses within the City and for surrounding properties. SITE PLAN/PRELIMINARY PLAT The site plan shows the development of a 20,000 square foot retail building with a drive through facility and future construction of a 4,200 square foot multi-tenant retail building. The project proposes surface parking, as well as,pedestrian connections to Pioneer Trail. There are 121 parking spaces proposed on site meeting the City Code requirement for retail uses based on gross floor area. Restaurants are a permitted use in the Community Commercial zoning district and parking requirements for restaurants are calculated based upon the number of seats provided in the restaurant. If future tenants include restaurant uses, parking requirements will be required to meet City Code requirements. Trash enclosures for both structures are integrated into the retail structures. The project proposes cross parking and access for the project area. Access will also be provided via easement from this property to the adjacent property to the south. The property is proposed to be platted into two lots and right of way dedicated for Pioneer Trail. PLANNED UNIT DEVELOPMENT WAIVERS The following waivers are requested: 1. Side yard parking setback from 10 feet to 0 feet along the common property line. This waiver will allow for cross parking and access within the project area. Cross parking and access agreements will be required prior to release of the building permit. 2. Floor Area and Base Area Ratio for Lot 2 of 0.22. City Code allows 0.2. Lot 2 proposes a FAR and BAR of 0.22. Lot 1 provides for a FAR and BAR of less than 0.2 therefore the overall FAR/BAR for the project meets the 0.2 standard. SIGNS All sign permits will require review and approval through the sign permit process. SITE LIGHTING The proposed site lighting plan meets City requirements. TREE LOSS AND LANDSCAPING PLAN The landscaping and tree replacement plans for the overall project exceed the requirements provided in City Code. The landscape plan does not include final landscaping for the future 4,200 square foot development proposed on Lot 1. Staff is recommending that prior to the City Staff Report—Kal Point December 4, 2015 Page 3 Council public hearing a revised landscaping plan is submitted that depicts final landscaping for Lot 1 including screening of parking areas from adjacent roadways, as well as revisions to Lot 2 to provide improved year round screening of parking areas. ARCHITECTURAL STANDARDS The proposed structures meet the requirements for exterior materials at the ratio of 75%/25% required per façade. The proposed structures also include roofline and wall deviations and articulations. Treatments such as canopies and light fixtures are also proposed as depicted in the architectural plans. The façade of the future 4,200 square foot retail building proposes the functional rear of the structure to face Pioneer Trail. Staff is recommending that prior to the City Council public hearing that revised plans are submitted to improve the architecture of this façade to create a more interesting and aesthetically pleasing façade facing the public roadway. STAFF RECOMMENDATIONS Recommend approval of the following request: 1. Guide Plan Change from Neighborhood Commercial to Community Commercial on 2.98 acres. 2. Planned Unit Development Concept Review on 2.98 acres 3. Planned Unit Development District Review with waivers on 2.98 acres 4. Zoning District Change from N-COM to C-COM on 2.98 acres 5. Site Plan Review on 2.98 acres 6. Preliminary Plat of three lots into two lots on 2.98 acres This is based on plans stamp dated November 5, 2015 and the following conditions: 1. Prior to the City Council public hearing, the proponent shall: A. Provide a landscaping plan that includes final landscaping plans meeting City Code requirements for Lot 1, including screening of parking areas from public roadways and revisions to Lot 2 to provide year round screening of parking areas. B. Provide revised architectural elevations for Lot 1 to provide improved aesthetics for the western façade facing Pioneer Trail. C. Provide confirmation that the planting island requirement of 5% is met. D. Provide an interim grading plan for Lot 1. 2. Prior to Land Alteration Permit issuance, the proponent shall: A. Submit detailed storm water runoff, utility and erosion control plans for review by the City Engineer and Watershed District. Staff Report—Kal Point December 4, 2015 Page 4 B. Install erosion control and tree protection fencing at the grading limits of the property for review and approval by the City Engineer and City Forester. 3. Prior to building permit issuance for the property, the proponent shall: A. Provide a tree replacement/landscaping surety equivalent to 150% of the cost of the landscaping plan for review and approval. B. Pay the applicable park dedication fees. C. Vacate existing drainage and utility easements along current common property lines and establish perimeter easements and easements as noted by engineering. D. A recorded copy of the easement providing access to the property to the south shall be provided to the City. E. Eliminate the ingress/egress easement that is on proposed Lot 2. F. Provide a recorded copy of the cross parking and access agreements for the project area. 4. The following waivers have been granted through the PUD District Review for the property: A. Side yard parking setback from 10 feet to 0 feet along the common property line. This waiver will allow for cross parking and access within the project area. Cross parking and access agreements will be required prior to release of the building permit. B.Floor Area and Base Area Ratio for Lot 2 of 0.22. City Code allows 0.2. Lot 2 proposes a FAR and BAR of 0.22. Lot 1 provides for a FAR and BAR of less than 0.2 therefore the overall FAR/BAR for the project meets the 0.2 standard. 5. All signage shall require review and approval of a sign permit. Area Location Map--KAL Point Address: 13105, 13075, & 13045 Pioneer Trail / ,,, 1 Iii ato • I 41A Flying Cloud Drive ' '� , WA ''t rir i-11116.1 ilW 1 ; NI so ill ,,1 1 ' A ,0 - . .......,1,,, �� _ = 0 m W W 'b iA Q • NildPAm•C Pr ii* )- O Pioneer Trail N 0 300 600 1,200 Feet I I I i I I I I I 11111.11&1 Guide Plan Map - KAL Point 2015-18 13045, 13075, & 13105 Pioneer Trail, Eden Prairie, MN 55344 I / Alli Alli1111.1111P 4 ri 1111, All -� YorksAl poem= —IIII 1,... aw,hire Lane , mild Pioneer Trai l. op,i.- - SITE 11 -111 // County Road #1 • C' y of Eden Prairie Land Use P Map 2000-2030 Rural Residential 0.10 Units/Acre Neighborhood Commercial N Low Density Residential 0-2.5 Units/Acre —i Community Commercial Streams 17.7 Low Density/Public/Open Space - Regional Commercial Principal Arterial —A Minor Arterial - Medium Density residential 2.5-10 Units/Acre Town Center Ai, #, 't—B Minor Arterial DATE Approved 03-19-03 DATE Revised 12-06-06 n Medium Density Residential/Office - Park/Open Space —Major Collector DATE Revised 01-07-05 DATE Revised 03-01-07 DATE Revised 11-07-05 DATE Revised 06-01-07 EDEN I High Density Residential 10-40 Units/Acre Public/Quasi-Public DATE Revised 02-23-06 DATE Revised 10-01-07 Minor Collector DATE Revised 03-23-06 DATE Revised 03-01-08 nAirport Golf Course DATE Revised 06-23-06 DATE Revised 03-01-09 Office - Church/Cemetary PRAIRIE Y// Office/Industrial Open Water LIVE WORK DREAM f� Office/Public/Open Space Right—Of—Way 425 212.5 M 0 ogamm�Me mo1.m_..„®.�..o.a„Y. MBo4425 Feet - Industrial Zoning Map -KAL Point 2015-18 13045, 13075, & 13105 Pioneer Trail Eden Prairie, MN 55347 ilkilip,_ � Yorkshire Lane 411111 II ----so ,:t II 1,11:1111 / /1---- II IleJL---------- Pioneer Trail / J I — ____ .,:z, P , 1 SITE /i ,:/*\ I' I - / County Road #1 City of Eden Prairie Zoning Map =Rural -Regional Commercial Shoreland Management Classifications N R1-44 One Family-44,000 sf.min. -TC-C I NE I Natural Environment Waters R1-22 One Family-22,000 sf min. -TC-R I RD I Recreational Development Waters R1-13.5 One Family-13,500 sf min. MITC-MU I GD I General Development Waters(Creeks Only) RI' , R1-9.5 One Family-9,500 sf min. M,Industrial Park-2 Acre Min, ® 100- Year Floodplain EDEN RM-6.5 Multi-Family-6.7 U.P.A.max. I Industrial Park-5Acre Min. -RM-2.5 Multi-Family-17.4 U.P.A.max. -General Industrial-5 Acre Min. Up dated through approved Ordinances#26-2008 Office AI Public Ordinance#33-2001(BFI Addition)approved,but not shown on this map edition PRAIRIE Neighborhood Commercial n Golf Course Date:March 1,2009 Community Commercial I I Water In case of discrepancy related to a toning classitmaaon on this zoning map,the Ordinance LIVE•WOAK•DAEAM and attached legal description on file at Eden Paine Ciry Center will prevail. -Highway Commercial I I Right of Way -Regional Service Commercial 0 0,075 0.15 Miles .wa:_o....m.::mo..m._..®.1..o.a., .2GE,..m ,..,,mo, Aerial Map - KAL Point Project #2015-18 Address: 13045, 13075, & 13105 Pioneer Trail, Eden Prairie, Minnesota 55347 SK1r • �A�! l�� 4_ =aA ; iu -- = / Grey Widgeon Place Illibit41171111,Wiiiii A' '0'.' '''4 d .:AAA T lig tar *VW a ,,,,,„ _ a, s,10 _ 416 fr' _ _ - � ii g t,""--q a +,..+�-— sp ,�F,c - 44 MI 6* - ,a(.l9�°,AAA9 yAais�t�l�l'1A<.n•� F .�'A 1� e.,:a • 3;i 411 AAA \�� •h F. ,r A A ma mom IIII _ „,,,i. .5, , . . ... , A, , _....... .. ,.. , , �� Pioneer Trail d' — Flying Cloud Drive 1 , , I ,.,, _ „ , Yorkshire Lane Y On , ,r 0 ... Pir. )r , ._ fi County Road #1 , 4 o 0 165 330 660 F APPROVED MINUTES EDEN PRAIRIE PLANNING COMMISSION MONDAY,DECEMBER 7, 2015 7:00 P.M., CITY CENTER Council Chambers 8080 Mitchell Road COMMISSION MEMBERS: Jon Stoltz, John Kirk, Travis Wuttke, Ann Higgins, Charles Weber, Andrew Pieper, Ed Farr STAFF MEMBERS: Julie Klima, City Planner Rod Rue, City Engineer Matt Bourne, Manager of Parks and Natural Resources Julie Krull, Recording Secretary I. PLEDGE OF ALLEGIANCE—ROLL CALL Chair Stoltz called the meeting to order at 7:00 p.m. Weber was absent. II. APPROVAL OF AGENDA MOTION by Higgins, seconded by Kirk, to approve the agenda. Motion carried 6-0. III. MINUTES A. PLANNING COMMISSION MEETING HELD ON NOVEMBER 23, 2015 Higgins had a change on page 3, paragraph 4, first sentence. Hardy boards should be replaced with Hardie Fiber Cement Siding. MOTION by Pieper, seconded by Farr, to approve the Amended Planning Commission Minutes. Motion carried 6-0. IV. INFORMATIONAL MEETINGS V. PUBLIC MEETINGS VI. PUBLIC HEARINGS C. KAL POINT Location: 13105, 13075 and 13045 Pioneer Trail Request for: 1 Eden Prairie Planning Commission December 7, 2015 • Guide Plan Change from Neighborhood Commercial to Community Commercial on 2.98 acres • Planned Unit Concept Review on 2.98 acres • Planned Unit Development District Review with waivers on 2.98 acres • Zoning District Change from Neighborhood Commercial to Community Commercial on 2.98 acres • Site Plan review on 2.98 acres • Preliminary Plat of three lots into two lots on 2.98 acres Kalyan Vempaty presented the proposal. He stated this is a proposal to construct a 20,000 square foot grocery space with a drive thru. The hours of operation would be Monday through Sunday, 8 am to 11 pm. There are 3 parcels that will be combined into 2. Chair Stoltz asked Klima to review the staff report. Klima said the request is for the construction of two buildings on 3 acres. The first building would be a 20,000 square foot grocery space with a drive thru. The second would be a 4200 square foot stand- alone multi-unit retail building. Waivers are for the setback on the common lot line and also for the floor and base area ratio. . Staff would like to work with the project proponent on landscaping and the facade for architectural features on the west side of the western building. Klima said staff is requesting an interim grading plan on the western most building. Staff recommendation is for approval. Wuttke asked about storm water mitigation on the property. Chad Ayer, civil engineer on the project, said the property will be surrounded by mitigation controls and there will be three infiltration bases on the north sides. Farr asked why there are two lots instead of one. Mr. Vempaty said in the future if they want to separate the lot, they can. Farr asked if there would be an issue with the drive-thru. Klima said staff has been reviewing the plan with the project proponent Farr asked about storm water and said there is very little sloping on the east side and asked if that was adequate. Mr. Ayer said they are comfortable with the sloping. Rue said the City concurs with Mr. Ayer. Farr said that there are some changes to the west side of the smaller building that could be made to enhance the appearance. Wuttke asked if they reached out to the neighborhood and what kind of feedback did they receive. The project proponent said they have not reached out to the neighborhood. Klima said that the City did send out public hearing notices within 500 feet of the subject property. 2 Eden Prairie Planning Commission December 7, 2015 Chair Stoltz opened the meeting for public input. Ken Hanson, of 13050 Pioneer Trail, said he has some concerns on the architectural structure of the building and commented when it gets windy he has concerns about the garbage flying around. Wuttke said he has seen garbage being a bit heavier in grocery store lots and is concerned with this area as it is busy. He would like to see a barrier for the trash. Farr said the trash is maintained in a trash enclosure so he does not see a problem with this. Kirk asked about the façade on the west side of the building and asked if that was a stipulation prior to approval. Klima said they wanted to work with the project proponent before this project is reviewed by the City Council. Jim Dungan, of 12909 Pioneer Trail, is in a commercial building next to this property and stated he does not want the building going up to look like a strip mall. MOTION by Farr, seconded by Kirk, to close the public hearing. Motion carried 6-0. MOTION by Farr, seconded by Wuttke, to recommend approval of the Guide Plan Change from Neighborhood Commercial to Community Commercial on 2.98 acres; Planned Unit Concept Review on 2.98 acres; Planned Unit Development District Review with waivers on 2.98 acres; Zoning District Change from neighborhood Commercial to Community Commercial on 2.98 acres; Site Plan Review on 2.98 acres and Preliminary Plat of three lots into two lots on 2.98 acres based on the information included in staff report dated December 4, 2015. Motion carried 6-0. VII. PLANNERS' REPORT No Planner's Report. VIII. MEMBERS' REPORT A. COMMUNITY ADVISORY COMMITTEE—LIGHT RAIL No Members' report. IX. CONTINUING BUSINESS No continuing business. X. NEW BUSINESS 3 Eden Prairie Planning Commission December 7, 2015 No new business. XI. ADJOURNMENT MOTION by Kirk, seconded by Pieper, to adjourn the Planning Commission meeting. Motion carried 6-0. There being no further business, the meeting was adjourned at 11:31 p.m. 4 CITY COUNCIL AGENDA DATE: SECTION: Public Hearing January 19, 2016 DEPARTMENT/DIVISION: ITEM DESCRIPTION: ITEM NO.: City Manager, Rick Getschow First Reading of an Ordinance Granting A Cable IX.B. TV Franchise to CenturyLink Requested Action: Move to: Approve first reading of an ordinance granting a cable television franchise to Century Link. Synopsis: The City of Eden Prairie has been asked to grant a cable television franchise agreement to CenturyLink. The City Council may grant this request if it finds that the applicant is capable of providing cable television services and if the applicant agrees to provide said services under the same terms and conditions as other cable television franchise holders in our city. The only other cable television franchise holder in Eden Prairie is Comcast. Our City is a member of the Southwest Cable Commission. The other member cities of the commission are Edina, Richfield, Minnetonka, and Hopkins. The Commission exists to advise its member cities on cable television matters. The Commission considered the CenturyLink request earlier this year. They then voted unanimously at their October 22 Board meeting to recommend that its member cities approve the CenturyLink franchise request. At the January 19 City Council meeting, Brian Grogan, legal counsel and administrator of the SW Cable Commission,will guide the City Council through a public hearing on the franchise request and advise the Council on the matter. Attachments: • Cable Commission Resolution Recommending Franchise • Grogan Memorandum Regarding Findings of Fact • Ordinance Granting Franchise • SWCC PowerPoint Presentation SOUTHWEST SUBURBAN CABLE COMMISSION Resolution No. 2015-1 Regarding Recommendations with Respect to CenturyLink's Proposal for a Cable Communications Franchise Recitals 1. The Southwest Suburban Cable Commission ("Commission") consists of the cities of Edina, Eden Prairie, Hopkins, Minnetonka and Richfield, Minnesota ("Member Cities"). 2. The Commission administers and enforces cable communications franchises on behalf of its Member Cities. 3. Qwest Broadband Services, Inc., d/b/a CenturyLink, Inc. ("CenturyLink") has approached each of the Member Cities seeking a cable communications franchise. 4. Minnesota Statutes § 238.08(a) mandates that the Member Cities require a franchise for any cable communications system providing service within the City. 5. Federal law at 47 U.S.C. § 541(a) provides that a city "may not unreasonably refuse to award an additional competitive franchise." 6. The Commission has advised each of the Member Cities to carefully follow the franchise procedure required by Minnesota Statutes § 238.081 by publishing once each week for two successive weeks in the official newspaper of the Member City a Notice of Intent to Franchise a Cable Communications System. 7. The Commission's proposed Notice stated all eight (8) criteria outlined in Minnesota Statutes § 238.081 Subd. 2. 8. In addition to the published Notice, the Commission advised each Member City to mail copies of the Notice of Intent and the Official Application Form to CenturyLink, as well as other interested parties. 9. Each Member Cities' Official Application Form required that proposals for a cable communications franchise contain responses to each of the items identified in Minnesota Statutes § 238.081 Subd. 4. 10. On behalf of the Member Cities, the Commission has carefully reviewed all information and documentation presented to each of the Member Cities regarding CenturyLink's proposal and qualifications to construct, own and operate a cable communications system within the Member Cities. 1 2992393v1 11. The Commission retained the law firm of Moss & Barnett, a Professional Association to assist the Commission and Member Cities in conducting the procedure required under Minnesota Statutes §238.081 and reviewing the application submitted by CenturyLink as well as comments and information from interested parties. 12. The Member Cities directed the Commission and Commission staff to meet with CenturyLink to negotiate mutually acceptable terms and conditions for a competitive cable franchise. 13. The Commission and CenturyLink have reached tentative agreement on a draft cable franchise ("Model CenturyLink Franchise") which is attached hereto and incorporated by reference. 14. Based on information and documentation made available to the Commission and Member Cities and the report dated June 1, 2015 prepared by Moss & Barnett with respect to CenturyLink's application, each of which hereby is incorporated in this Resolution by reference, the Commission has reached recommendations regarding CenturyLink's legal, technical and financial qualifications and the award of a Model CenturyLink Franchise. NOW THEREFORE, the Commission hereby resolves as follows: 1. The Commission hereby finds that CenturyLink's application to each of the Member Cities complies with the requirements of Minnesota Statutes § 238.081. 2. The Commission finds that CenturyLink possesses the requisite legal, technical and financial qualifications to construct, own and operate a cable communications system within the Member Cities. 3. The Commission finds that the Model CenturyLink Franchise is reasonable and acceptable and the Commission recommends adoption of the Model CenturyLink Franchise by the Member Cities. 4. The Commission directs staff to finalize the Model CenturyLink Franchise and customize the Model CenturyLink Franchise for each Member City. 5. The Commission directs staff to prepare a memorandum and detailed proposed findings of fact for each Member City regarding CenturyLink's qualifications and the terms of the Model CenturyLink Franchise. 6. The Commission directs staff to undertake all other necessary action to accomplish the directives set forth in this Resolution. 2 2992393v1 7. The Commission finds that its actions are appropriate and reasonable in light of the mandates contained in Chapter 238 of Minnesota Statutes and applicable provisions of federal law including 47 U.S.C. § 541(a). PASSED AND ADOPTED this 2,S day of OGFebe.r , 2015. SOUTHWEST SUBURBAN CABLE COMMISSION By: �g Scott Neal, Chairman ATTEST: By: 3 2992393v1 ♦♦ii Moss & Barnett MEMORANDUM To: City Council of the City of Eden Prairie, Minnesota From: Brian Grogan Date: December 4, 2015 Re: Competition in Cable Communications Franchising Executive Summary The City of Eden Prairie, Minnesota ("City") is considering granting a competitive cable franchise to Qwest Broadband Services, Inc., d/b/a CenturyLink ("CenturyLink") in a service area for which Comcast holds an existing franchise. This memorandum is intended to assist the City Council ("Council") in its consideration of the proposed Ordinance Granting a Competitive Cable Franchise for Qwest Broadband Services, Inc., d/b/a CenturyLink ("CenturyLink Franchise") by summarizing the legal issues surrounding its terms that relate to competition in the cable communications industry. Details The Southwest Suburban Cable Commission ("Commission") adopted Resolution No. 2015-1 enclosed as Exhibit 1 finding CenturyLink to be legally, technically, and financially qualified to provide cable communications services to residents of the City. In connection with that finding, the Commission authorized City staff to negotiate with CenturyLink to determine if mutually agreeable terms for such a franchise could be reached. Those negotiations are now complete and have resulted in the proposed CenturyLink Franchise enclosed as Exhibit 2. City staff has also prepared for the Council's review and consideration, written "findings of fact," enclosed as Exhibit 3, setting forth the factual and legal basis for the grant of the CenturyLink 150 South Fifth Street I Suite 1200 Minneapolis, MN 55402 P:612-877-5000 F:612-877-5999 W:LawMoss.com City Council of the City of Eden Prairie, Minnesota December 4, 2015 Page 2 Franchise and the impact of relevant State and federal competitive cable franchise laws and regulations. Build-out To help promote competition in and minimize unnecessary regulatory burdens on the cable communications industry, the Cable Communications Policy Act of 1984, as amended by the Cable Consumer Protection and Competition Act of 1992 and Telecommunications Act of 1996 (the "Cable Act") prohibits local franchising authorities from granting exclusive cable communications franchises or unreasonably refusing to award an additional franchise to a qualified applicant.' The Federal Communications Commission ('FCC"), which administers the Cable Act, addressed competitive cable franchising in its 2007 Report and Order and Further Notice of Rulemaking (generally referred to as the "621 Order" after its subject, Section 621 of the legislation that became the Cable Act). The 621 Order explained that an unreasonable refusal in contravention of the Cable Act could occur not only by outright denial of a franchise application, but also by creating conditions that operate as de facto denials. One variety of de facto denial addressed by the 621 Order is the imposition of unreasonable build out requirements that act as a barrier for an additional cable provider to enter a market with an existing franchise: Build-out requirements deter market entry because a new entrant generally must take customers from the incumbent cable operator . . . . Because the second provider realistically cannot count on acquiring a share of the market similar to the incumbent's share, the second entrant cannot justify a large initial deployment. Rather, a new entrant must begin offering service within a smaller area to determine whether it can reasonably ensure a return on its investment before expanding.2 1 47 U.S.C. § 541(a)(1). 2 621 Order at ¶ 35. City Council of the City of Eden Prairie, Minnesota December 4, 2015 Page 3 The 621 Order did not prohibit all build out requirements, but instead provided examples of unreasonable build out requirements—and of reasonable ones, such as a small initial deployment and required expansion triggered by market success.3 Minnesota Statutes Chapter 238, which establishes statewide cable communications requirements, also addresses build out by requiring "a provision in initial franchises identifying . . . a schedule showing: . . . that construction throughout the authorized franchise area must be substantially completed within five years of the granting of the franchise.i4 CenturyLink takes the position that Minnesota's five-year build out requirement is unreasonable under the 621 Order and is therefore preempted by the federal law. Comcast disagrees and points to the FCC's recent reaffirmation that the 621 Order's rulings "were intended to apply only to the local franchising process and not to franchising laws and decisions at the state level.i5 The CenturyLink Franchise addresses this issue by requiring a modest initial deployment (at least 15% of the service area within two years) and linking build out requirements to market-success benchmarks that CenturyLink must use its best efforts to meet, but granting the City sole discretion to determine, at the end of five years, whether CenturyLink has fulfilled its build out obligations to qualify for renewal of the franchise.6 Competitive Equity The Minnesota cable communications statutes also contain a general level-playing-field (i.e., "competitive equity") provision that requires that an additional franchise include no terms or conditions"more favorable or less burdensome than those in the existing franchise pertaining to: (1) the area served; (2) public, educational, or governmental access requirements; or (3) 3 Id. at ¶ 89-90. 4 Minn. Stat. § 238.084, subd. 1(m). 5 621 Order at ¶ 7, cited in letter dated May 4, 2015 6 CenturyLink Franchise §2.6. City Council of the City of Eden Prairie, Minnesota December 4, 2015 Page 4 franchise fees."' Minnesota courts have interpreted this provision as requiring "substantially similar"—rather than identical—terms.8 Several attempts have been made to ensure that the CenturyLink Franchise is substantially similar to Comcast's existing franchise: first, the Comcast franchise served as the base document for negotiation of the CenturyLink Franchise; second, the franchise fees required by the CenturyLink Franchise are identical to those required by Comcast's franchise; third, the geographic area (after complete build-out) of the CenturyLink Franchise matches the area specified in Comcast's franchise; and fourth, the CenturyLink Franchise requires CenturyLink to require substantially similar—if not greater—public, educational, and governmental access. Findings of Fact As previously indicated, whether the Council ultimately grants or denies the proposed CenturyLink Franchise, it must examine all of the evidence presented to it, weigh the facts, and apply the correct legal standards. Enclosed as Exhibit 3 are draft findings of fact generally supporting a decision to approve the CenturyLink Franchise. With the caveat that best practices dictate that the final findings of fact should respond to any evidence or argument against approval, the attached findings of fact may serve as a useful starting point if the Council elects to grant CenturyLink the franchise it seeks. 3056783v1 ' Minn. Stat. § 238.08, subd. 1(b). 8 See WHLink, LLC v. City of Otsego, 664 N.W.2d 390, 396 (Minn. Ct. App. 2003). EXHIBIT 1 Southwest Suburban Cable Commission Resolution 2015-1 Exhibit 1 EXHIBIT 2 CenturyLink Franchise Exhibit 2 EXHIBIT 3 Findings of Fact Exhibit 3 CITY OF EDEN PRAIRIE, MINNESOTA RESOLUTION NO. Regarding an Ordinance Granting a Competitive Cable Franchise for Qwest Broadband Services,Inc., d/b/a CenturyLink RECITALS: WHEREAS, the City of Eden Prairie, Minnesota makes the following FINDINGS OF FACT: 1. In October 2014, Qwest Broadband Services, Inc., d/b/a CenturyLink, Inc. ("CenturyLink") requested that the City of Eden Prairie, Minnesota ("City") initiate proceedings to consider awarding it a franchise to provide cable communications services in the City("Service Territory"). 2. Comcast of Arkansas/Florida/Louisiana/Minnesota/Mississippi/Tennessee, Inc. ("Comcast") holds a non-exclusive cable communications franchise for the Service Territory("Comcast Franchise"). 3. The Comcast Franchise, which the City last renewed in August 2012, is currently the only cable communications franchise for the Service Territory. 4. The monopoly held by a sole cable communication provider in a particular market is a barrier to entry for additional providers, which does not have a captive market but must instead"win" every subscriber.1 5. The presence of a second cable operator in a market improves the quality of service offerings and drives down prices by approximately 15%.2 6. On April 9 and April 16, 2015, the City published a Notice of Intent to Franchise a Cable Communications System ("Notice") in the Eden Prairie News, a newspaper of general circulation in the Service Territory. 7. The Notice indicated that the City was soliciting franchise applications and provided information regarding the application process, including that applications were required to be submitted on or before April 30, 2015 and that a public hearing to hear proposals from applicants would be held May 5, 2015 at 7:00 PM. 8. The City also mailed copies of the Notice and application materials to CenturyLink and Comcast.3 1 In the Matter of Section 621(a)(1) of the Cable Communications Policy Act of 1984 as amended by the Cable Television Consumer Protection and Competition Act of 1992, Report and Order and Further Notice of Proposed Rulemaking,MB Docket No. 05-311,at¶ 138 (Rel.Mar. 5,2007)("621 Order"). 2 Id. at 11112,50. 1 9. On April 30, 2015, the City received an application from CenturyLink (the "CenturyLink Application"). The City did not receive any other applications. 10. As provided by the Notice, on May 5, 2015 the City held a public hearing during the City Council's regularly scheduled meeting to consider CenturyLink's application and qualifications. 11. On May 4, 2015, Comcast submitted a letter to the City setting forth its position regarding the CenturyLink Application("Comcast Letter").4 12. The Comcast Letter expresses concern about how CenturyLink's proposal compared to particular provisions of the existing Comcast Franchise.5 13. The Comcast Letter also summarizes Comcast's position regarding build-out requirements and other proposed terms related to competition in the cable industry.6 14. During the hearing, CenturyLink presented its proposal and all other interested parties were provided an opportunity to speak and present information to the City Council regarding the CenturyLink Application. 15. Following the hearing, the law firm of Moss & Barnett, a Professional Association prepared a report, dated June 1, 2015 ("Franchise Report"), reviewing and analyzing the City's franchising procedures, the CenturyLink Application and other information provided by CenturyLink in connection with the May 5, 2015 public hearing. 16. The Franchise Report identifies and discusses federal and state legal requirements relevant to the City's consideration of the CenturyLink Application, including laws pertaining to franchising procedures and competition between providers.8 17. The Franchise Report also analyzes information provided by CenturyLink to establish its qualifications to operate a cable communications franchise in the Service Territory.9 18. At its meeting on October 28, 2015, the Southwest Suburban Cable Commission ("Commission") considered the Franchise Report along with the information and documentation it had received regarding the CenturyLink Application, and adopted Resolution 2015-1 finding and concluding that the CenturyLink Application complied with the requirements of Minn. Stat. § 238.081 and that CenturyLink is legally, 3 Notice by the City of Eden Prairie,Minnesota of Its Intent to Consider An Application for a Franchise and Request for Proposals-Official Application Form 4See May 4, 2015 letter from Emmett Coleman to Brian Grogan, Franchise Administrator of the Southwest Suburban Cable Commission regarding CenturyLink Video Franchise Application. 5 Id. at 2. 6 Id. at 1-2. Report to the Southwest Suburban Cable Commission Regarding Qwest Broadband Services, Inc. d/b/a/ CenturyLink—Proposal for a Cable Communication Franchise,June 1,2015. 8 Franchise Report at 2-9. 9Id. at 11-12. 2 technically, and financially qualified to operate a cable communications system within the Service Territory. 19. In Minnesota, both State and federal law govern the terms and conditions of an additional cable communications franchise in an already-franchised service area.10 20. The franchising authority may not grant an exclusive franchise or unreasonably refuse to award an additional competitive franchise.11 21. The franchising authority must allow an applicant reasonable time to become capable of providing cable service to all households in the service area.12 22. The franchising authority may grant an additional franchise in an already-franchised service area if the terms and conditions of the additional franchise are not "more favorable or less burdensome than those in the existing franchise" regarding the area served, the PEG access requirements, and franchise fees.) 23. The additional franchise must also include, among other things, "a schedule showing . . . that the construction throughout the authorized franchise area must be substantially completed within five years of the granting of the franchise."14 24. In order to ensure that any additional franchise granted to CenturyLink would contain substantially similar service area, PEG access requirements, and franchise fees to the Comcast Franchise, the City used the Comcast Franchise as the base document for its negotiations. 25. On [ date ], the City Council gave notice that it intended to introduce an ordinance granting a cable communications franchise to CenturyLink. 26. On [_date_], the City Council introduced Ordinance No. , an Ordinance of the City of Eden Prairie Granting a Cable Communications Franchise to Qwest Broadband Services, Inc. d/b/a CenturyLink("CenturyLink Franchise"). 27. Copies of the CenturyLink Franchise were made available to the public, including Comcast, on [_date ]. 28. The CenturyLink Franchise encompasses the same Service Territory encompassed by the Comcast Franchise.'5 10 See 47 U.S.C. § 541(a)(1);Minn. Stat. §§238.08, .084;see also Franchise Report at 2-8. 47 U.S.C. § 541(a)(1). 12 47 U.S.C. § 541(a)(4). 13 Minn. Stat. §238.08,subd. 1(b). 14 Minn. Stat. §238.84,subd. 1(m). 15 CenturyLink Franchise § 2.4;Comcast Franchise § 2.4. 3 29. The franchise fees required by the CenturyLink Franchise are identical to those required by the Comcast Franchise. 16 30. The PEG access requirements in the CenturyLink Franchise mandate certain obligations, such as HD channel capacity for all PEG channels that go beyond the commitments made in the Comcast franchise.17 31. The City recognizes that CenturyLink, which currently offers no cable communications services in the Service Territory, cannot justify a large initial deployment because it "realistically cannot count on acquiring a share of the market similar to Comcast's share . . . [and] must begin offering service within a smaller area to determine whether it can reasonably ensure a return on its investment before expanding."18 32. The CenturyLink Franchise therefore requires CenturyLink's initial deployment to be capable of serving at least 15% of the living units in the Service Territory within two years. 33. The CenturyLink Franchise permits the City to monitor CenturyLink's progress and compliance with build-out requirements via quarterly meeting and accelerates the build- out schedule if CenturyLink has market success, with the goal and expectation that build- out will be substantially complete before the CenturyLink Franchise's five-year term expires.19 34. During its regularly scheduled meeting on January 19, 2016, the City Council will hold a public hearing at which all interested parties are provided an opportunity to speak and present information regarding the proposed CenturyLink Franchise. WHEREAS, the City has considered these facts and the cable-related needs and interests of the community: NOW THEREFORE, the City Council for the City of Eden Prairie, Minnesota hereby resolves as follows: 1. The foregoing findings are adopted as the official findings of the City Council and made a part of the official record. 2. The City has authority to adopt an ordinance granting a cable communications franchise to CenturyLink for the Service Territory. 3. The City may not unreasonably refuse to award a competitive cable communications franchise to CenturyLink. 16 CenturyLink Franchise§ 16.1;Comcast Franchise§ 16.1. 17 CenturyLink Franchise§ 7;Comcast Franchise § 7. 18 621 Order at¶35. 19 CenturyLink Franchise §2.6. 4 4. The City and its residents will benefit from adoption of the CenturyLink Franchise, which will introduce facilities-based competition into the cable communications market in the Service Territory and thereby reduce costs to consumers and increase the quality and availability of services. 5. CenturyLink is legally, technically, and financially qualified to operate a cable communications system in the Service Territory and has complied with all application requirements. 6. The City has complied with all franchise application requirements imposed by State and federal law, including those identified herein or in the Franchise Report. 7. The terms and conditions of the CenturyLink Franchise pertaining to service area, a PEG access requirement, and franchise fees are not more favorable or less burdensome than the corollary terms of the Comcast Franchise. 8. The CenturyLink Franchise's initial deployment requirement of 15% within two years and 5-year timeline for substantially completing build-out provides a reasonable period of time for CenturyLink to become capable of reaching full deployment and is therefore consistent with both State and federal law. 9. The Ordinance Granting a Cable Communications Franchise for Qwest Broadband Services, Inc., d/b/a CenturyLink is formally and finally adopted. 10. The City finds and concludes that its actions are appropriate, reasonable, and consistent in all respects with the mandates set forth in Chapter 238 of Minnesota Statutes and applicable provisions of federal law, including 47 U.S.C. § 541(a). PASSED AND ADOPTED in regular session of the City Council of the City of Eden Prairie, Minnesota this day of , 201_• Mayor of the City of Eden Prairie ATTEST: City Clerk 5 City of Eden Prairie, Minnesota Ordinance Granting a Cable Television Franchise to Qwest Broadband Services, Inc. d/b/a CenturyLink January 19, 2016 Prepared by: BRIAN T. GROGAN, ESQ. Moss & Barnett A Professional Association 150 South Fifth Street, Suite 1200 Minneapolis, MN 55402 (612) 877-5340 3056782v1 TABLE OF CONTENTS SECTION 1 DEFINITIONS 1 SECTION 2 FRANCHISE 5 SECTION 3 OPERATION IN STREETS AND RIGHTS-OF-WAY 12 SECTION 4 REMOVAL OR ABANDONMENT OF SYSTEM 15 SECTION 5 SYSTEM DESIGN AND CAPACITY 17 SECTION 6 PROGRAMMING AND SERVICES 20 SECTION 7 PUBLIC, EDUCATIONAL AND GOVERNMENTAL ACCESS 21 SECTION 8 REGULATORY PROVISIONS 29 SECTION 9 BOND 30 SECTION 10 SECURITY FUND 30 SECTION 11 DEFAULT 33 SECTION 12 FORECLOSURE AND RECEIVERSHIP 35 SECTION 13 REPORTING REQUIREMENTS 36 SECTION 14 CUSTOMER SERVICE POLICIES 37 SECTION 15 SUBSCRIBER PRACTICES 43 SECTION 16 COMPENSATION AND FINANCIAL PROVISIONS 44 SECTION 17 MISCELLANEOUS PROVISIONS 47 EXHIBIT A FREE CABLE SERVICE TO PUBLIC BUILDINGS A-1 EXHIBIT B FRANCHISE FEE PAYMENT WORKSHEET B-1 EXHIBIT C INDEMNITY AGREEMENT C-1 3056782v1 ORDINANCE NO. AN ORDINANCE GRANTING A FRANCHISE TO QWEST BROADBAND SERVICES, INC.,D/B/A CENTURYLINK TO OPERATE AND MAINTAIN A CABLE SYSTEM AND PROVIDE CABLE SERVICES IN THE CITY OF EDEN PRAIRIE; SETTING FORTH CONDITIONS ACCOMPANYING THE GRANT OF FRANCHISE; PROVIDING FOR CITY REGULATION AND ADMINISTRATION OF THE CABLE SYSTEM AND CABLE SERVICES. RECITALS The City of Eden Prairie, Minnesota("City")pursuant to applicable federal and state law is authorized to grant one or more nonexclusive cable television franchises to construct, operate, maintain and reconstruct cable television systems within the City limits. Qwest Broadband Services, Inc., d/b/a CenturyLink("Grantee") seeks a competitive cable television franchise with the City. Negotiations between Grantee and the City have been completed in accordance with the guidelines established by the City Code, Minnesota Statutes Chapter 238 and the Cable Act(47 U.S.C. Section 546). The City reviewed the legal, technical and financial qualifications of Grantee and, after a properly noticed public hearing, determined that it is in the best interest of the City and its residents to grant this competitive cable television franchise to Grantee. NOW, THEREFORE, THE CITY OF EDEN PRAIRIE DOES ORDAIN that a franchise is hereby granted to Qwest Broadband Services, Inc. to operate and maintain a Cable System and provide Cable Services in the City upon the following terms and conditions: SECTION 1 DEFINITIONS For the purpose of this Franchise, the following, terms, phrases, words, derivations and their derivations shall have the meanings given herein. When not inconsistent with the context, words used in the present tense include the future tense, words in the plural number include the singular number and words in the singular number include the plural number. In the event the meaning of any word or phrase not defined herein is uncertain, the definitions contained in applicable local, State or Federal law shall apply. "Access Channels"means any channel or portion of a channel utilized for public, educational or governmental programming. "Affiliate" shall mean any Person controlling, controlled by or under common control of Grantee. 1 3056782v1 "Applicable Laws"means any law, statute, charter, ordinance, rule, regulation, code, license, certificate, franchise,permit, writ, ruling, award, executive order, directive, requirement, injunction(whether temporary, preliminary or permanent),judgment, decree or other order issued, executed, entered or deemed applicable to Grantee by any governmental authority of competent jurisdiction. "Basic Cable Service"means any service tier which includes the lawful retransmission of local television broadcast and shall include the public, educational and governmental access channels. Basic Cable Service as defined herein shall be the definition set forth in 47 U.S.C. § 522(3). "Cable Act"means the Cable Communications Policy Act of 1984, 47 U.S.C. §§ 521 et seq., as amended by the Cable Television Consumer Protection and Competition Act of 1992, as further amended by the Telecommunications Act of 1996, as further amended from time to time. "Cable Service" shall mean (a) the one-way transmission to Subscribers of(i) Video Programming or(ii) Other Programming Service, and b) Subscriber interaction, if any, which is required for the selection or use of such video programming or other programming service. For the purposes of this definition, "video programming" is programming provided by, or generally considered comparable to programming provided by a television broadcast station; and, "other programming service" is information that a cable operator makes available to all Subscribers generally. "Cable System" or"System" shall have the meaning specified for"Cable System"in the Cable Act. Unless otherwise specified, it shall in this document refer to the Cable System utilized by the Grantee in the City under this Franchise. "Channel"means a portion of the electromagnetic frequency spectrum which is used in a Cable System and which is capable of delivering a television channel as defined by the FCC by regulation. "City" shall mean the City of Eden Prairie, a municipal corporation in the State of Minnesota. "City Code"means the Municipal Code of the City of Eden Prairie, Minnesota, as may be amended from time to time. "Commission"means the Southwest Suburban Cable Communications Commission consisting of the cities of Edina, Eden Prairie, Hopkins, Minnetonka and Richfield, Minnesota. "Connection"means the attachment of the Drop to the television set or Set Top Box of the Subscriber. "Council" shall mean the governing body of the City. 2 3056782v1 "Day"unless otherwise specified shall mean a calendar day. "Drop" shall mean the cable that connects the Subscriber terminal to the nearest feeder cable of the cable. "Effective Date" shall mean January 19, 2016. "Expanded Basic Service"means all Subscriber services other than Basic Cable Service provided by the Grantee covered by a regular monthly charge, but not including optional programming offered on a pay-per-channel or pay-per-view basis. "FCC"means the Federal Communications Commission, or a designated representative. "Franchise" shall mean the right granted by this Ordinance and conditioned as set forth herein. "Franchise Area"means the entire geographic area within the City as it is now constituted or may in the future be constituted. "Franchise Fee" shall mean the fee assessed by the City to Grantee, in consideration of Grantee's right to operate the Cable System within the City's Streets and rights of way, determined in amount as a percentage of Grantee's Gross Revenues and limited to the maximum percentage allowed for such assessment by federal law. The term Franchise Fee does not include the exceptions noted in 47 U.S.C. §542(g)(2)(A-E). "GAAP"means generally accepted accounting principles as promulgated and defined by the Financial Accounting Standards Board("FASB"), Emerging Issues Task Force ("EITF") and/or the U.S. Securities and Exchange Commission("SEC"). "Grantee"means Qwest Broadband Services, Inc., d/b/a CenturyLink. "Gross Revenues"means any and all compensation in whatever form, from any source, directly or indirectly earned by Grantee or any Affiliate of Grantee or any other Person who would constitute a cable operator of the Cable System under the Cable Act, derived from the operation of the Cable System to provide Cable Service within the City. Gross Revenues include, by way of illustration and not limitation, monthly fees charged Subscribers for Cable Services including Basic Cable Service, any expanded tiers of Cable Service, optional premium or digital services; pay-per-view services; Pay Services, installation, disconnection, reconnection and change-in-service fees, Leased Access Channel fees, all Cable Service lease payments from the Cable System to provide Cable Services in the City, late fees and administrative fees, payments or other consideration received by Grantee from programmers for carriage of programming on the Cable System and accounted for as revenue under GAAP; revenues from rentals or sales of Set Top Boxes or other Cable System equipment; advertising sales revenues booked in accordance with Applicable Law and GAAP; revenues from program guides and electronic guides, additional outlet fees, Franchise Fees required by this Franchise, revenue from Interactive Services to the extent they are considered Cable Services under Applicable Law; 3 3056782v1 revenue from the sale or carriage of other Cable Services, revenues from home shopping and other revenue-sharing arrangements. Copyright fees or other license fees paid by Grantee shall not be subtracted from Gross Revenues for purposes of calculating Franchise Fees. Gross Revenues shall include revenue received by any entity other than Grantee where necessary to prevent evasion or avoidance of the obligation under this Franchise to pay the Franchise Fees. Gross Revenues shall not include any taxes on services furnished by Grantee, which taxes are imposed directly on a Subscriber or user by a city, county, state or other governmental unit, and collected by Grantee for such entity. The Franchise Fee is not such a tax. Gross Revenues shall not include amounts which cannot be collected by Grantee and are identified as bad debt; provided that if amounts previously representing bad debt are collected, then those amounts shall be included in Gross Revenues for the period in which they are collected. Gross Revenues shall not include payments for PEG Access capital support. The City acknowledges and accepts that Grantee shall maintain its books and records in accordance with GAAP. "Interactive Services" are those services provided to Subscribers whereby the Subscriber either(a) both receives information consisting of either television or other signal and transmits signals generated by the Subscriber or equipment under his/her control for the purpose of selecting what information shall be transmitted to the Subscriber or for any other purpose or(b) transmits signals to any other location for any purpose. "Living Unit"means a distinct address as tracked in the QC network inventory,used by CenturyLink to identify existing or potential Subscribers. This includes, but is not limited to, single family homes, multi-dwelling units (e.g., apartment buildings and condominiums) and business locations. "Minnesota Cable Communications Act"means the provisions of Minnesota law governing the requirements for a cable television franchise as set forth in Minn. Stat. § 238, et. seq., as amended. "Mosaic Channel"means a channel which displays miniaturized media screens and related information for a particular group of Channels with common themes. The Mosaic Channel serves as a navigation tool for Subscribers, which displays the group of Access Channels on a single Channel screen and also provides for easy navigation to a chosen Access Channel. "Normal Business Hours"means those hours during which most similar businesses in City are open to serve customers. In all cases, "Normal Business Hours" must include some evening hours, at least one (1)night per week and/or some weekend hours. "Normal Operating Conditions"means those Service conditions which are within the control of Grantee. Those conditions which are not within the control of Grantee include,but are not limited to, natural disasters, civil disturbances, power outages, telephone network outages, and severe or unusual weather conditions. Those conditions which are ordinarily within the control of Grantee include, but are not limited to, special promotions, pay-per-view events, rate 4 3056782v1 increases, regular peak or seasonal demand periods, and maintenance or upgrade of the Cable System. "Pay Service"means programming (such as certain on-demand movie channels or pay- per-view programs) offered individually to Subscribers on a per-channel, per-program or per- event basis. "PEG"means public, educational and governmental. "Person"means any natural person and all domestic and foreign corporations, closely- held corporations, associations, syndicates,joint stock corporations, partnerships of every kind, clubs, businesses, common law trusts, societies and/or any other legal entity. "QC"means Qwest Corporation, wholly owned subsidiary of CenturyLink, Inc. and an Affiliate of Grantee. "Qualified Living Unit"means a Living Unit which meets the minimum technical qualifications defined by Grantee for the provision of Cable Service. A Living Unit receiving a minimum of 25Mbps downstream will generally be capable of receiving Cable Service subject to Grantee performing certain network grooming and conditioning. "Set Top Box"means an electronic device, which converts signals to a frequency not susceptible to interference within the television receiver of a Subscriber, and by an appropriate Channel selector also permits a Subscriber to view all signals included in the Basic Cable Service tier delivered at designated converter dial locations. "Street" shall mean the surface of and the space above and below any public Street, road, highway, freeway, lane, path, public way, alley, court, sidewalk,boulevard,parkway, drive or any easement or right-of-way now or hereafter held by City which shall, within its proper use and meaning in the sole opinion of City, entitle Grantee to the use thereof for the purpose of installing or transmitting over poles, wires, cables, conductors, ducts, conduits, vaults, man- holes, amplifiers, appliances, attachments and other property as may be ordinarily necessary and pertinent to a Cable System. "Subscriber"means a Person who lawfully receives Cable Service from Grantee. "Wireline MVPD"means a multichannel video programming distributor that utilizes the Streets to install cable or fiber and is engaged in the business of making available for purchase, by Subscribers, multiple Channels of video programming in the City. SECTION 2 FRANCHISE 2.1 Grant of Franchise. 5 3056782v1 (a) The City hereby authorizes Grantee to occupy or use the City's Streets subject to: 1)the provisions of this non-exclusive Franchise to provide Cable Service within the City; and 2) all applicable provisions of the City Code. Said Franchise shall constitute both a right and an obligation to provide Cable Services as required by the provisions of this Franchise. Nothing in this Franchise shall be construed to prohibit Grantee from: (1)providing services other than Cable Services to the extent not prohibited by Applicable Law; or(2) challenging any exercise of the City's legislative or regulatory authority in an appropriate forum. The City hereby reserves all of its rights to regulate such other services to the extent not prohibited by Applicable Law and no provision herein shall be construed to limit or give up any right to regulate. (b) Grantee promises and guarantees, as a condition of exercising the privileges granted by this Franchise, that any Affiliated Entity of the Grantee involved in the offering of Cable Service in the City, or directly involved in the ownership, management or operation of the Cable System in the City, shall also comply with all obligations of this Franchise. However, the City and Grantee acknowledge that QC will be primarily responsible for the construction and installation of the facilities in the Rights-of-Way which will be utilized by Grantee to provide Cable Services. So long as QC does not provide Cable Service to Subscribers in the City, QC will not be subject to the terms and conditions contained in this Franchise. QC's installation and maintenance of facilities in the Rights-of-Way is governed by applicable local, state and federal law. To the extent Grantee constructs and installs facilities in the Rights-of-Way, such installation will be subject to the terms and conditions contained in this Franchise. Grantee is responsible for all provisions in this Franchise related to: 1) its offering of Cable Services in the City; and 2)the operation of the Cable System regardless of what entity owns or constructs the facilities used to provide the Cable Service. The City and Grantee agree that to the extent QC violates any applicable federal, state, or local laws, rules, and regulations, the City shall first seek compliance directly from QC. In the event the City cannot resolve these violations or disputes with QC, then the City may look to Grantee to ensure such compliance. Failure by Grantee to ensure QC's or any other Affiliate's compliance with Applicable Laws, rules, and regulations, shall be deemed a material breach of this Franchise by Grantee. 2.2 Reservation of Authority. The Grantee specifically agrees to comply with the lawful provisions of the City Code and applicable regulations of the City. Subject to the police power exception below, in the event of a conflict between A)the lawful provisions of the City Code or applicable regulations of the City and B) this Franchise, the express provisions of this Franchise shall govern. Subject to express federal and state preemption, the material terms and conditions contained in this Franchise may not be unilaterally altered by the City through subsequent amendments to the City Code, ordinances or any regulation of City, except in the lawful exercise of City's police power. Grantee acknowledges that the City may modify its regulatory policies by lawful exercise of the City's police powers throughout the term of this Franchise. Grantee agrees to comply with such lawful modifications to the City Code; however, Grantee reserves all rights it may have to challenge such modifications to the City Code whether arising in contract or at law. The City reserves all of its rights and defenses to such challenges whether arising in contract or at law. Nothing in this Franchise shall (A) abrogate the right of the 6 3056782v1 City to perform any public works or public improvements of any description, (B) be construed as a waiver of any codes or ordinances of general applicability promulgated by the City, or(C)be construed as a waiver or release of the rights of the City in and to the Streets. 2.3 Franchise Term. This Franchise shall be in effect for a term of five (5) years from the date of acceptance by Grantee,unless terminated sooner as hereinafter provided. Six (6) months prior to the expiration of the initial five (5) year term, if City determines that Grantee is in compliance with all other material terms of this Franchise including the build out obligations set forth in this Franchise as required by Applicable Law, the City shall have the unilateral right to extend the Franchise for an additional term of no less than five (5) years and no more than ten(10) years. 2.4 Franchise Area. The Grantee is hereby authorized to provide Cable Services over a Cable System within the jurisdictional boundaries of the City, including any areas annexed by the City during the term of this Franchise. The parties acknowledge that Grantee is not the first entrant into the wireline video market in the City. The Grantee acknowledges that the City desires wireline competition throughout the entire City so all residents may receive the benefits of competitive Cable Services. Grantee aspires to provide Cable Service to all households within the City by the end of the five year(5) term of this Franchise. Grantee agrees that its deployment of Cable Service in the City will be geographically dispersed throughout the City, and shall be made available to diverse residential neighborhoods of the City without discrimination. 2.5 Franchise Nonexclusive. The Franchise granted herein shall be nonexclusive. The City specifically reserves the right to grant, at any time, such additional franchises for a Cable System as it deems appropriate provided, however, such additional grants shall not operate to materially modify, revoke, or terminate any rights previously granted to Grantee other than as described in Section 17.17. The grant of any additional franchise shall not of itself be deemed to constitute a modification, revocation, or termination of rights previously granted to Grantee. Any additional cable franchise grants shall comply with Minn. Stat. Section 238.08 and any other applicable federal level playing field requirements. 2.6 Build Out. (a) Initial build out. No later than the second anniversary of the Effective Date of this Franchise, Grantee shall be capable of serving a minimum of fifteen percent (15%) of the City's households with Cable Service; provided, however, Grantee will make its best efforts to complete such deployment within a shorter period of time. Grantee agrees that this initial minimum build-out commitment shall include a significant number of households below the median income in the City. City shall,upon written request of Grantee,provide detailed maps of such areas. Nothing in this Franchise shall restrict Grantee from serving additional households in the City with Cable Service. (b) Quarterly Meetings. In order to permit the Commission to monitor and enforce the provisions of this section and other provisions of this Franchise, the Grantee shall, upon demand,promptly make available to the Commission maps and other documentation showing exactly where within the City the Grantee is currently providing Cable Service. Grantee shall meet with the Commission, not less than once quarterly, to 7 3056782v1 demonstrate Grantee's compliance with the provisions of this section concerning the deployment of Cable Services in the City including, by way of example, the provision of this section in which Grantee commits that a significant portion of its initial investment will be targeted to areas below the median income within the City, and the provisions of this section that prohibit discrimination in the deployment of Cable Services. In order to permit the Commission and the City to monitor and enforce the provisions of this section and other provisions of this Franchise, the Grantee shall, commencing April 15, 2016, and continuing throughout the term of this Franchise, meet quarterly with the Commission and make available to the Commission the following information: (i) The total number of Living Units throughout the City; (ii) The geographic area within the City where the Grantee is capable of delivering Cable Service through either a FTTH or FTTN method of service delivery which shall include sufficient detail to allow the City to determine the availability of Cable Services at commercially-zoned parcels; (iii) The actual number of Qualified Living Units capable of receiving Cable Service from Grantee through FTTH and FTTN; and (iv) A list of the public buildings and educational institutions capable of receiving Cable Service from the Grantee (see list attached hereto as Exhibit A). (c) Additional build out based on Market Success. If, at any quarterly meeting, including any quarterly meeting prior to the second anniversary of the Effective Date of this Franchise as referenced in Section 2.6(a)herein, Grantee is actually serving twenty seven and one-half percent(27.5%) of the households capable of receiving Cable Service, then Grantee agrees the minimum build-out commitment shall increase to include all of the households then capable of receiving Cable Service plus an additional fifteen(15%) of the total households in the City, which Grantee agrees to serve within two (2) years from the quarterly meeting; provided, however, the Grantee shall make its best efforts to complete such deployment within a shorter period of time. For example, if, at a quarterly meeting with the Commission, Grantee shows that it is capable of serving sixty percent (60%) of the households in the City with Cable Service and is actually serving thirty percent(30%) of those households with Cable Service, then Grantee will agree to serve an additional fifteen percent (15%) of the total households in the City no later than two (2) years after that quarterly meeting (a total of seventy-five percent (75%) of the total households). This additional build-out based on market success shall continue until every household in the City is served. (d) Nondiscrimination. Grantee shall provide Cable Service under non- discriminatory rates and reasonable terms and conditions to all Subscribers who reside in Living Units in any location where the Grantee is capable of providing Cable Service. Grantee shall not arbitrarily refuse to provide Cable Services to any Person or in any location where the Grantee is capable of providing Cable Service. Any Qualified Living Unit should also include Commercially-Zoned Parcels. "Commercially-Zoned Parcels" 8 3056782v1 mean any Street address or municipally identified lot or parcel of real estate with a building. Grantee shall not deny Cable Services to any group of Subscribers or potential residential Subscribers based upon the income level of residents of the local area in which such group resides, nor shall Grantee base decisions about construction or maintenance of its Cable System or facilities based upon the income level of residents of the local area in which such group resides. Grantee shall provide such service at non-discriminatory monthly rates for residential Subscribers, consistent with Applicable Law. Grantee shall not discriminate between or among any individuals in the availability of Cable Service based upon income in accordance and consistent with 47 U.S.C. Section 541(a)(3), or based upon race or ethnicity. (e) Standard Installation. Grantee shall provide Cable Services at its standard installation within seven(7) days of a request by any Person in a Qualified Living Unit. A request shall be deemed made on the date of signing a service agreement, receipt of funds by Grantee or receipt by Grantee of a verified verbal or written request. (f) Multiple Dwelling Units. The Grantee shall offer the individual units of a multiple dwelling unit all Cable Services offered to other Dwelling Units in the City. Grantee shall,upon request, individually wire units upon request of the property owner or renter who has been given written authorization by the owner. Such offering is conditioned upon the Grantee having legal access to said unit and any payment(for Grantee's reasonable costs of internal wiring) as applicable. The City acknowledges that the Grantee cannot control the dissemination of particular Cable Services beyond the point of demarcation at a multiple dwelling unit. 2.7 Periodic Public Review of Franchise. Within sixty(60) Days of the third anniversary of the Effective Date of this Franchise or third annual anniversary of any extension of the Franchise term, the City may conduct a public review of the Franchise. The purpose of any such review shall be to ensure, with the benefit of full opportunity for public comment, that the Grantee continues to effectively serve the public in the light of new developments in cable law and regulation, cable technology, cable company performance with the requirements of this Franchise, local regulatory environment, community needs and interests, and other such factors. Both the City and Grantee agree to make a full and good faith effort to participate in the review. So long as Grantee receives reasonable notice, Grantee shall participate in the review process and shall fully cooperate. The review shall not operate to modify or change any provision of this Franchise without mutual written consent in accordance with Section 17.6 of this Franchise. 2.8 Transfer of Ownership. (a) No sale, transfer, assignment or"fundamental corporate change", as defined in Minn. Stat. § 238.083, of this Franchise shall take place until the parties to the sale, transfer, or fundamental corporate change files a written request with City for its approval, provided, however, that said approval shall not be required where Grantee grants a security interest in its Franchise and assets to secure an indebtedness. (b) City shall have thirty(30) Days from the time of the request to reply in writing and indicate approval of the request or its determination that a public hearing is 9 3056782v1 necessary due to potential adverse affect on Grantee's Subscribers resulting from the sale or transfer. Such approval or determination shall be expressed in writing within thirty (30) Days of receipt of said request, or the request shall be deemed approved as a matter of law. (c) If a public hearing is deemed necessary pursuant to (b) above, such hearing shall be commenced within thirty(30) Days of such determination and notice of any such hearing shall be given in accordance with local law or fourteen (14) Days prior to the hearing by publishing notice thereof once in a newspaper of general circulation in City. The notice shall contain the date, time and place of the hearing and shall briefly state the substance of the action to be considered by City. (d) Within thirty(30) Days after the closing of the public hearing, City shall approve or deny in writing the sale or transfer request. City shall set forth in writing with particularity its reason(s) for denying approval. City shall not unreasonably withhold its approval. (e) The parties to the sale or transfer of the Franchise only, without the inclusion of the System in which substantial construction has commenced, shall establish that the sale or transfer of only the Franchise will be in the public interest. (f) Any sale or transfer of stock in Grantee so as to create a new controlling interest in the System shall be subject to the requirements of this Section 2.8. The term "controlling interest" as used herein is not limited to majority stock ownership,but includes actual working control in whatever manner exercised. (g) In no event shall a transfer or assignment of ownership or control be approved without the transferee becoming a signatory to this Franchise and assuming all rights and obligations thereunder, and assuming all other rights and obligations of the transferor to the City. (h) In the event of any proposed sale or assignment pursuant to paragraph(a) of this section, City shall have the right of first refusal of any bona fide offer to purchase only the Cable System. Bona fide offer, as used in this section, means an offer received by the Grantee which it intends to accept subject to City's rights under this section. This written offer must be conveyed to City along with the Grantee's written acceptance of the offer contingent upon the rights of City provided for in this section. City shall be deemed to have waived its rights under this paragraph (h) in the following circumstances: (i) If it does not indicate to Grantee in writing, within thirty(30) Days of notice of a proposed sale or assignment, its intention to exercise its right of purchase; or (ii) It approves the assignment or sale of the Franchise as provided within this section 10 3056782v1 (i) A transfer of the Franchise shall not include a transfer of ownership or other interest in Grantee to the parent of Grantee or to another Affiliate of Grantee; transfer of an interest in the Franchise or the rights held by Grantee under the Franchise to the parent of Grantee or to another Affiliate of Grantee; any action which is the result of a merger of the parent of Grantee; or any action which is the result of a merger of another Affiliate of Grantee. Nothing in this Section 2.8 (i) shall be read to serve as a waiver of Grantee's obligation to obtain the City's advance written consent to any proposed transfer that constitutes a change in the "controlling interest" of the Grantee as set forth in 2.8 (f) herein and Minn. Stat. Section 238.083. 2.9 Expiration. Upon expiration of the Franchise, the City shall have the right at its own election and subject to Grantee's rights under Section 626 of the Cable Act to: (a) extend the Franchise, though nothing in this provision shall be construed to require such extension; (b) renew the Franchise, in accordance with Applicable Laws; (c) invite additional franchise applications or proposals; (d) terminate the Franchise subject to any rights Grantee has under Section 626 of the Cable Act; or (e) take such other action as the City deems appropriate. 2.10 Right to Require Removal of Property. At the expiration of the term for which the Franchise is granted provided no renewal is granted, or upon its forfeiture or revocation as provided for herein, the City shall have the right to require Grantee to remove at Grantee's own expense all or any part of the Cable System,used exclusively to provide Cable Service, from all Streets and public ways within the Franchise Area within a reasonable time. If Grantee fails to do so, the City may perform the work and collect the cost thereof from Grantee. 2.11 Continuity of Service Mandatory. It shall be the right of all Subscribers to receive all available services insofar as their financial and other obligations to Grantee are honored. In the event that Grantee elects to overbuild, rebuild, modify, or sell the system, or the City revokes or fails to renew the Franchise, Grantee shall make its best effort to ensure that all Subscribers receive continuous uninterrupted service, regardless of the circumstances, during the lifetime of the Franchise. In the event of expiration,purchase, lease-purchase, condemnation, acquisition, taking over or holding of plant and equipment, sale, lease, or other transfer to any other Person, including any other grantee of a cable communications franchise, the current Grantee shall cooperate fully to operate the system in accordance with the terms and conditions of this Franchise for a temporary period sufficient in length to maintain continuity of service to all Subscribers. 11 3056782v1 SECTION 3 OPERATION IN STREETS AND RIGHTS-OF-WAY 3.1 Use of Streets. (a) Grantee may, subject to the terms of this Franchise, erect, install, construct, repair, replace, reconstruct and retain in, on, over,under, upon, across and along the Streets within the City such lines, cables, conductors, ducts, conduits, vaults, manholes, amplifiers, appliances,pedestals, attachments and other property and equipment as are necessary and appurtenant to the operation of a Cable System within the City. Without limiting the foregoing and subject to Section 2.1(b)herein, Grantee expressly agrees that it will construct, operate and maintain its Cable System in compliance with, and subject to, the requirements of the City Code, including by way of example and not limitation, those requirements governing the placement of Grantee's Cable System; and with other applicable City Codes, and will obtain and maintain all permits and bonds required by the City Code in addition to those required in this Franchise. (b) All wires, conduits, cable and other property and facilities of Grantee shall be so located, constructed, installed and maintained as not to endanger or unnecessarily interfere with the usual and customary trade, traffic and travel upon, or other use of, the Streets of City. Grantee shall keep and maintain all of its property in good condition, order and repair so that the same shall not menace or endanger the life or property of any Person. Grantee shall keep accurate maps and records of all of its wires, conduits, cables and other property and facilities located, constructed and maintained in the City. (c) All wires, conduits, cables and other property and facilities of Grantee, shall be constructed and installed in an orderly and workmanlike manner. All wires, conduits and cables shall be installed, where possible, parallel with electric and telephone lines. Multiple cable configurations shall be arranged in parallel and bundled with due respect for engineering considerations. 3.2 Construction or Alteration. Subject to Section 2.1(b)herein, Grantee shall in all cases comply with the City Code, City resolutions and City regulations regarding the acquisition of permits and/or such other items as may be reasonably required in order to construct, alter or maintain the Cable System. Grantee shall,upon request, provide information to the City regarding its progress in completing or altering the Cable System. 3.3 Non-Interference. Grantee shall exert its best efforts to construct and maintain a Cable System so as not to interfere with other use of Streets. Grantee shall, where possible in the case of above ground lines, make use of existing poles and other facilities available to Grantee. When residents receiving underground service or who will be receiving underground service will be affected by proposed construction or alteration, Grantee shall provide such notice as set forth in the permit or in City Code of the same to such affected residents. 3.4 Consistency with Designated Use. Notwithstanding the above grant to use Streets, no Street shall be used by Grantee if the City, in its sole opinion, determines that such 12 3056782v1 use is inconsistent with the terms, conditions or provisions by which such Street was created or dedicated, or presently used under Applicable Laws. 3.5 Undergrounding. Grantee shall place underground all of its transmission lines which are located or are to be located above or within the Streets of the City in the following cases: (a) all other existing utilities are required to be placed underground by statute, resolution,policy or other Applicable Law; (b) Grantee is unable to get pole clearance; (c) underground easements are obtained from developers of new residential areas; or (d) utilities are overhead but residents prefer underground(service provided at cost). If an ordinance is passed which involves placing underground certain utilities including Grantee's cable plant which is then located overhead, Grantee shall participate in such underground project and shall remove poles, cables and overhead wires if requested to do so and place facilities underground. Nothing herein shall mandate that City provide reimbursement to Grantee for the costs of such relocation and removal. However, if the City makes available funds for the cost of placing facilities underground, nothing herein shall preclude the Grantee from participating in such funding to the extent consistent with the City Code or Applicable Laws. Grantee shall use conduit or its functional equivalent to the greatest extent possible for undergrounding, except for Drops from pedestals to Subscribers' homes and for cable on other private property where the owner requests that conduit not be used. Cable and conduit shall be utilized which meets the highest industry standards for electronic performance and resistance to interference or damage from environmental factors. Grantee shall use, in conjunction with other utility companies or providers, common trenches for underground construction wherever available. 3.6 Maintenance and Restoration. (a) Restoration. In case of disturbance of any Street, public way, paved area or public improvement by Grantee, Grantee shall, at its own cost and expense and in accordance with the requirements of Applicable Law, restore such Street,public way, paved area or public improvement to substantially the same condition as existed before the work involving such disturbance took place. All restoration occurring in private easements or on other private property shall be performed in accordance with the City Code. Grantee shall perform all restoration work within a reasonable time and with due regard to seasonal working conditions. If Grantee fails, neglects or refuses to make restorations as required under this section, then the City may do such work or cause it to be done, and the cost thereof to the City shall be paid by Grantee. If Grantee causes any 13 3056782v1 damage to private property in the process of restoring facilities, Grantee shall repair such damage. (b) Maintenance. Grantee shall maintain all above ground improvements that it places on City right-of-way pursuant to the City Code and any permit issued by the City. In order to avoid interference with the City's ability to maintain the right-of-way, Grantee shall provide such clearance as is required by the City Code and any permit issued by the City. If Grantee fails to comply with this provision and by its failure property is damaged, Grantee shall be responsible for all damages caused thereby. (c) Disputes. In any dispute over the adequacy of restoration or maintenance relative to this section, final determination shall be the prerogative of the City, Department of Public Works and consistent with the City Code and any permit issued by the City. 3.7 Work on Private Property. Grantee, with the consent of property owners, shall have the authority, pursuant to the City Code, to trim trees upon and overhanging Streets, alleys, sidewalks, and public ways so as to prevent the branches of such trees from coming in contact with the wires and cables of Grantee, except that at the option of the City, such trimming may be done by it or under its supervision and direction at the reasonable expense of Grantee. 3.8 Relocation. (a) City Property. If, during the term of the Franchise, the City or any government entity elects or requires a third party to alter, repair, realign, abandon, improve, vacate, reroute or change the grade of any Street, public way or other public property; or to construct, maintain or repair any public improvement; or to replace, repair install, maintain, or otherwise alter any cable, wire conduit,pipe, line,pole, wire-holding structure, structure, or other facility, including a facility used for the provision of utility or other services or transportation of drainage, sewage or other liquids, for any public purpose, Grantee shall,upon request, except as otherwise hereinafter provided, at its sole expense remove or relocate as necessary its poles, wires, cables,underground conduits, vaults, pedestals, manholes and any other facilities which it has installed. Nothing herein shall mandate that City provide reimbursement to Grantee for the costs of such relocation and removal. However, if the City makes available funds for the cost of placing facilities underground, nothing herein shall preclude the Grantee from participating in such funding to the extent consistent with the City Code or Applicable Laws. (b) Utilities and Other Franchisees. If, during the term of the Franchise, another entity which holds a franchise or any utility requests Grantee to remove or relocate such facilities to accommodate the construction, maintenance or repair of the requesting party's facilities, or their more efficient use, or to "make ready" the requesting party's facilities for use by others, or because Grantee is using a facility which the requesting party has a right or duty to remove, Grantee shall do so. The companies involved may decide among themselves who is to bear the cost of removal or relocation, pursuant to City Code, and provided that the City shall not be liable for such costs. 14 3056782v1 (c) Notice to Remove or Relocate. Any Person requesting Grantee to remove or relocate its facilities shall give Grantee no less than forty-five (45) Days' advance written notice to Grantee advising Grantee of the date or dates removal or relocation is to be undertaken; provided, that no advance written notice shall be required in emergencies or in cases where public health and safety or property is endangered. (d) Failure by Grantee to Remove or Relocate. If Grantee fails, neglects or refuses to remove or relocate its facilities as directed by the City; or in emergencies or where public health and safety or property is endangered, the City may do such work or cause it to be done, and the cost thereof to the City shall be paid by Grantee. If Grantee fails, neglects or refuses to remove or relocate its facilities as directed by another franchisee or utility, that franchisee or utility may do such work or cause it to be done, and if Grantee would have been liable for the cost of performing such work, the cost thereof to the party performing the work or having the work performed shall be paid by Grantee. (e) Procedure for Removal of Cable. Grantee shall not remove any underground cable or conduit which requires trenching or other opening of the Streets along the extension of cable to be removed, except as hereinafter provided. Grantee may remove any underground cable from the Streets which has been installed in such a manner that it can be removed without trenching or other opening of the Streets along the extension of cable to be removed. Subject to Applicable Law, Grantee shall remove, at its sole cost and expense, any underground cable or conduit by trenching or opening of the Streets along the extension thereof or otherwise which is ordered to be removed by the City based upon a determination, in the sole discretion of the City, that removal is required in order to eliminate or prevent a hazardous condition. Underground cable and conduit in the Streets which is not removed shall be deemed abandoned and title thereto shall be vested in the City. (f) Movement of Buildings. Grantee shall, upon request by any Person holding a building moving permit, franchise or other approval issued by the City, temporarily remove, raise or lower its wire to permit the movement of buildings. The expense of such removal, raising or lowering shall be paid by the Person requesting same, and Grantee shall be authorized to require such payment in advance. The City shall require all building movers to provide not less than fifteen(15) Days' notice to the cable company to arrange for such temporary wire changes. SECTION 4 REMOVAL OR ABANDONMENT OF SYSTEM 4.1 Removal of Cable System. In the event that: (1) the use of the Cable System is discontinued for any reason for a continuous period of twelve (12)months; or(2) the Cable System has been installed in a Street without complying with the requirements of this Franchise, Grantee, at its expense shall, at the demand of the City remove promptly from the Streets all of the Cable System, used only to provide Cable Service, other than any which the City may permit to be abandoned in place. In the event of any such removal Grantee shall promptly restore to a 15 3056782v1 condition as nearly as possible to its prior condition the Street or other public places in the City from which the System has been removed. 4.2 Abandonment of Cable System. In the event of Grantee's abandonment of the Cable System,used only to provide Cable Service, City shall have the right to require Grantee to conform to the state right-of-way rules, Minn. Rules, Chapter 7819. The Cable System to be abandoned in place shall be abandoned in the manner prescribed by the City. Grantee may not abandon any portion of the System without having first given three (3)months written notice to the City. Grantee may not abandon any portion of the System without compensating the City for damages resulting from the abandonment. 4.3 Removal after Abandonment or Termination. If Grantee has failed to commence removal of System, used only to provide Cable Service, or such part thereof as was designated by City, within thirty(30) days after written notice of City's demand for removal consistent with Minn. Rules, Ch. 7819, is given, or if Grantee has failed to complete such removal within twelve (12) months after written notice of City's demand for removal is given, City shall have the right to apply funds secured by the letter of credit and performance bond toward removal and/or declare all right, title, and interest to the Cable System to be in City with all rights of ownership including, but not limited to, the right to operate the Cable System or transfer the Cable System to another for operation by it. 4.4 City Options for Failure to Remove Cable System. If Grantee has failed to complete such removal within the time given after written notice of the City's demand for removal is given, the City shall have the right to exercise one of the following options: (a) Declare all right, title and interest to the System, used only to provide Cable Service, to be in the City or its designee with all rights of ownership including, but not limited to, the right to operate the System or transfer the System to another for operation by it; or (b) Declare the System abandoned and cause the System, if used only to provide Cable Service, or such part thereof as the City shall designate, to be removed at no cost to the City. The cost of said removal shall be recoverable from the security fund, indemnity and penalty section provided for in this Franchise or from Grantee directly. (c) Upon termination of service to any Subscriber, Grantee shall promptly remove all its facilities and equipment from within the dwelling of a Subscriber who owns such dwelling upon his or her written request, except as provided by Applicable Law. Such Subscribers shall be responsible for any costs incurred by Grantee in removing the facilities and equipment. 4.5 System Construction and Equipment Standards. The Cable System shall be installed and maintained in accordance with standard good engineering practices and shall conform, when applicable, with the National Electrical Safety Code, the National Electrical Code and the FCC's Rules and Regulations. 16 3056782v1 4.6 System Maps and Layout. To the extent not otherwise provided for in Section 2.6(b), Grantee, or an affiliate, shall maintain complete and accurate records, maps and diagrams of the location of all its facilities used to provide Cable Services and the Cable System maintained by QC in the Streets and make them available to the City upon request. SECTION 5 SYSTEM DESIGN AND CAPACITY 5.1 Availability of Signals and Equipment. (a) The Cable System shall have a bandwidth capable of providing the equivalent of a typical 750 MHz Cable System. Recognizing that the City has limited authority under federal law to designate the technical method by which Grantee provides Cable Service, as of the Effective Date of this Franchise, Grantee provides its Cable Service utilizing two (2) different methods. First, using a PON platform, the Grantee provides Cable Service to some Qualified Living Units by connecting fiber directly to the household("FTTP"). Second, the Grantee provides Cable Service to some Qualified Living Units by deploying fiber further into the neighborhoods and using the existing copper infrastructure to increase broadband speeds ("FTTN"). Generally speaking, when Grantee deploys FTTN, households located within four thousand(4,000) cable feet of a remote terminal shall receive broadband speeds capable of providing Cable Service. In both the FTTP and FTTN footprint, a household receiving a minimum of 25 Mbps downstream will generally be capable of receiving Cable Service after Grantee performs certain network grooming and conditioning. (b) The Grantee shall comply with all FCC regulations regarding carriage of digital and HDTV transmissions. (c) Grantee agrees to maintain the Cable System in a manner consistent with, or in excess of the specifications in Section 5.1 (a) and(b)throughout the term of the Franchise with sufficient capability and technical quality to enable the implementation and performance of all the requirements of this Franchise, including the exhibits hereto, and in a manner which meets or exceeds FCC technical quality standards at 47 C.F.R. § 76 Subpart K, regardless of the particular format in which a signal is transmitted. 5.2 Free Cable Service to Public Buildings. (a) As part of its support for PEG use of the System, the Grantee shall provide a free drop to the Subscriber network and free Basic Cable Service and Expanded Basic Cable Service to all of the sites listed on Exhibit A attached hereto, and to such other public institutions as the City may reasonably request from time to time provided such location is a Qualified Living Unit and not currently receiving service from another provider. However, City may determine to disconnect the other cable provider and require Grantee to meet the free service obligation, as determined in City's sole discretion. 17 3056782v1 (b) The Grantee is only required to provide a single free drop to the Subscriber network, to a single outlet at a point within the location selected by that location. However, the location may extend the drop to multiple outlets and receive free Basic and Expanded Basic Cable Service at each outlet so long as such extension does not result in any violations of applicable leakage standards which the Grantee is obligated to meet. A location that wishes to install multiple outlets may do so itself, or may contract with the Grantee to do so. Grantee shall provide up to three (3) additional Set Top Boxes to each new location free of charge so that the services can be received and individually tuned by each receiver connected to the drop at a location. If an institution physically moves locations, such institution may move existing Set Top Boxes to the new locations with a free drop, and the moved Set Top Box will not count against the three (3) additional Set Top Boxes. Grantee will replace and maintain Set Top Boxes it provides or that it had provided as necessary so that locations may continue to view the free services Grantee is required to provide. Provided such location is a Qualified Living Unit and not currently receiving service from another provider. However, City may determine to disconnect the other cable provider and require Grantee to meet the free service obligation, as determined in City's sole discretion. (c) Outlets of Basic and Expanded Basic Cable Service provided in accordance with this section may be used to distribute Cable Services throughout such buildings; provided such distribution can be accomplished without causing Cable System disruption and general technical standards are maintained. Such outlets may only be used for lawful purposes. Grantee agrees that if any broadband service is required in order to receive the free service obligation set forth in this section, Grantee will provide such broadband service free of charge for the sole purpose of facilitating the provision of free Cable Service required by this section. Grantee agrees that it will not offset, deduct or reduce its payment of past,present or future Franchise Fees required as a result of its obligation to connections or services to public facilities. 5.3 System Specifications. (a) System Maintenance. In all its construction and service provision activities, Grantee shall meet or exceed the construction, technical performance, extension and service requirements set forth in this Franchise. (b) Emergency Alert Capability. At all times during the term of this Franchise, Grantee shall provide and maintain an Emergency Alert System(EAS) consistent with applicable federal law and regulations including 47 C.F.R., Part 11, and any Minnesota State Emergency Alert System requirements. The City may identify authorized emergency officials for activating the EAS consistent with the Minnesota State Emergency Statewide Plan ("EAS Plan"). The City may also develop a local plan containing methods of EAS message distribution, subject to Applicable Laws and the EAS Plan. Nothing in this section is intended to expand Grantee's obligations beyond that which is required by the EAS Plan and Applicable Law. 18 3056782v1 (c) Standby Power. Grantee shall provide standby power generating capacity at the Cable System control center. Grantee shall maintain standby power system supplies, rated at least at two (2) hours' duration, throughout the trunk and distribution networks. In addition, Grantee shall have in place throughout the Franchise term a plan, and all resources necessary for implementation of the plan, for dealing with outages of more than two (2)hours. (d) Technical Standards. The technical standards used in the operation of the Cable System shall comply, at minimum, with the applicable technical standards promulgated by the FCC relating to Cable Systems pursuant to Title 47, Section 76, Subpart K of the Code of Federal Regulations, as may be amended or modified from time to time, which regulations are expressly incorporated herein by reference. The Cable System shall be installed and maintained in accordance with standard good engineering practices and shall conform with the National Electrical Safety Code and all other Applicable Laws governing the construction of the Cable System. 5.4 Performance Testing. Grantee shall perform all applicable system tests at the intervals required by the FCC, and all other tests reasonably necessary to determine compliance with technical standards required by this Franchise. These tests shall include, at a minimum: (a) Initial proof of performance for any construction; (b) Semi-annual compliance tests; (c) Tests in response to Subscriber complaints; (d) Tests requested by the City to demonstrate franchise compliance; and (e) Written records of all system test results performed by or for Grantee shall be maintained, and shall be available for City inspection upon request. 5.5 Special Testing. (a) Throughout the term of this Franchise, City shall have the right to inspect all construction or installation work performed pursuant to the provisions of the Franchise. In addition, City may require special testing of a location or locations within the System if there is a particular matter of controversy or unresolved complaints regarding such construction or installation work or pertaining to such location(s). Demand for such special tests may be made on the basis of complaints received or other evidence indicating an unresolved controversy or noncompliance. Such tests shall be limited to the particular matter in controversy or unresolved complaints. City shall endeavor to so arrange its request for such special testing so as to minimize hardship or inconvenience to Grantee or to the Subscribers caused by such testing. (b) Before ordering such tests, Grantee shall be afforded thirty(30) Days following receipt of written notice to investigate and, if necessary, correct problems or complaints upon which tests were ordered. City shall meet with Grantee prior to 19 3056782v1 requiring special tests to discuss the need for such and, if possible, visually inspect those locations which are the focus of concern. If, after such meetings and inspections, City wishes to commence special tests and the thirty(30) Days have elapsed without correction of the matter in controversy or unresolved complaints, the tests shall be conducted at Grantee's expense by Grantee's qualified engineer. The City shall have a right to participate in such testing by having an engineer of City's choosing, and at City's expense, observe and monitor said testing. SECTION 6 PROGRAMMING AND SERVICES 6.1 Categories of Programming Service. Grantee shall provide video programming services in at least the following broad categories: Local Broadcast(subject to federal carriage requirements) Public Broadcast News and Information Sports General Entertainment Arts/Performance/Humanities Science/Technology Children/Family/Seniors Foreign Language/Ethnic Programming Public, Educational and Governmental Access Programming (to the extent required by the Franchise) Movies Leased Access 6.2 Changes in Programming Services. Grantee shall not delete or so limit as to effectively delete any broad category of programming within its control without the City's consent. Further, Grantee shall provide at least thirty(30) Days' prior written notice to Subscribers and to the City of Grantee's request to effectively delete any broad category of programming or any Channel within its control, including all proposed changes in bandwidth or Channel allocation and any assignments including any new equipment requirements that may occur as a result of these changes. 6.3 Parental Control Device. Upon request by any Subscriber, Grantee shall make available for sale or lease a parental control or lockout device that will enable the Subscriber to block all access to any and all Channels without affecting those not blocked. Grantee shall inform Subscribers of the availability of the lockout device at the time of original subscription and annually thereafter. 6.4 FCC Reports. The results of any tests required to be filed by Grantee with the FCC shall also be copied to City within ten(10) Days of the conduct of the date of the tests. 6.5 Annexation. Unless otherwise provided by Applicable Law, including the City Code, upon the annexation of any additional land area by City, the annexed area shall thereafter 20 3056782v1 be subject to all the terms of this Franchise upon sixty(60) Days written notification to Grantee of the annexation by City. Unless otherwise required by Applicable Laws, nothing herein shall require the Grantee to expand its Cable System to serve, or to offer Cable Service to any area annexed by the City if such area is then served by another Wireline MVPD franchised to provide multichannel video programming. 6.6 Line Extension. Grantee shall not have a line extension obligation until the first date by which Grantee is providing Cable Service to more than fifty percent (50%) of all Subscribers receiving facilities based Cable Service from both the Grantee and any other provider(s) of Cable Service within the City. At that time, the City, in its reasonable discretion and after meeting with Grantee, shall determine the timeframe to complete deployment to the remaining households in the City, including a density requirement that is the same or similar to the requirement of the incumbent franchised cable operator. 6.7 Nonvoice Return Capability. Grantee is required to use cable and associated electronics having the technical capacity for nonvoice return communications. SECTION 7 PUBLIC, EDUCATIONAL AND GOVERNMENTAL ACCESS 7.1 Number of PEG Access Channels. Within one hundred eighty(180) days of the Effective Date, Grantee will make available three (3) PEG Access Channels. 7.2 Digital and High Definition PEG Carriage Requirements. While the parties recognize that while the primary signals of local broadcast stations are simulcast in standard definition("SD") and high definition("HD") formats, the Grantee's obligation with respect to carriage of PEG in HD and SD formats shall be as follows: (a) Grantee agrees to carry all PEG Access Channels in HD provided the entity originating the signal provides the Grantee an HD signal. Further, Grantee will downconvert any such signal to an SD format so that Subscribers who choose not to subscribe to an HD package may receive said signal in an SD format. (b) Grantee is not required to convert a signal delivered in a lower quality format to a higher quality format. The City shall have no obligation to provide a signal to the Grantee in a HD format. (c) All PEG Access Channels must be receivable by Subscribers without special expense in addition to the expense paid to receive commercial services the Subscriber receives. City acknowledges that HD programming may require the viewer to have special viewer equipment(such as an HDTV and an HD-capable digital device/receiver), but any Subscriber who can view an HD signal delivered via the Cable System at a receiver shall also be able to view the HD Access Channels at that receiver, without additional charges or equipment. By agreeing to make PEG available in HD format, Grantee is not agreeing to provide free HD equipment to Subscribers including complimentary municipal and educational accounts, or to modify its equipment or pricing policies in any manner. City acknowledges that not every Subscriber may be able to 21 3056782v1 view HD PEG programming (for example, because they do not have an HDTV in their home or have chosen not to take an HD-capable receiving device from Grantee or other equipment provider) or on every television in the home. (d) The Grantee,upon request of the City, will provide technical assistance or diagnostic services to determine whether or not the problem with the PEG signals is the result of matters for which the Grantee is responsible, and if so the Grantee will take prompt corrective actions. (e) The Grantee will provide any PEG Access Channels on the Basic Cable Service tier throughout the life of the Franchise, or if there is no Basic Cable Service tier, shall provide the PEG Access Channels to any Person who subscribes to any level of cable video programming service, and otherwise in accordance with Applicable Laws. To the extent technically feasible, Grantee shall, upon request from the City, provide City with quarterly viewership numbers for each of the PEG Access Channels carried on Grantee's Cable System. (f) Grantee shall facilitate carriage of PEG Access Channel program listings on its interactive programming guide, at no cost to the City provided that the City shall hold Grantee harmless should the City or PEG providers fail to provide correct or timely information to the interactive guide programmers. (g) If Channels are selected through menu systems, the PEG Access Channels shall be displayed in the same manner as other Channels, and with equivalent information regarding the programming on the Channel. To the extent that any menu system is controlled by a third party, Grantee shall ensure that the Grantee will provide PEG listings on that menu system, if it is provided with the programming information by the City. 7.3 Control of PEG Channels. The control and administration of the Access Channels shall rest with the City and the City may delegate, from time to time over the term of this Franchise, such control and administration to various entities as determined in City's sole discretion. 7.4 Transmission of Access Channels. Access Channels may be used for transmission of non-video signals in compliance with Applicable Laws. This may include downstream transmission of data using a protocol such as TCP/IP or current industry standards. Should Grantee develop the capability to provide bi-directional data transmission, spectrum capacity shall be sufficient to allow Subscribers to transmit data to PEG facilities. 7.5 Access Channel Locations. (a) Grantee shall provide the City's government access channel in both HD and SD. The government access channel will be located on Channel 235 and shall at all times be located in the Channel neighborhood offering news/public affairs programming on Grantee's Cable System channel lineup. The government access channel shall have video and audio signal strength, signal quality, and functionality equivalent to the highest 22 3056782v1 quality broadcast and commercial cable/satellite Channels carried by the Grantee on its Cable System. (i) Grantee shall carry the remaining public and educational Channels (PE Channels) on Channel 26 in its Channel lineup as a means to provide ease of access by Subscribers to the group of PE Channels placed consecutively on Channel numbers significantly higher in the Channel lineup. This use of one (1) Channel to access the group of PE Channels required under this Franchise shall be referred to as a"Mosaic Channel." The Mosaic Channel shall display the group of PE Channels on a single Channel screen and serve as a navigation tool for Subscribers. The Mosaic Channel shall allow Subscribers to navigate directly from Channel 26 to any of the PE Channels requested in a single operation without any intermediate steps to a chosen PE Channel in the group. (ii) Grantee shall use Channel 26 as a Mosaic Channel to access the PE Channels required under this Franchise. The group of consecutive PE channels residing at higher Channel numbers will retain Channel names and identity for marketing purposes,unless approved by the City. Grantee shall not include any other programming or Channels on the Commission's PE Mosaic Channel unless the City provides advance written consent. (iii) When using the Mosaic Channel, Subscribers shall be directed to the requested PE Channel in an HD format if appropriate to the Subscriber's level of service; otherwise, the Subscriber shall be directed to the SD PE Channel. The Mosaic Channel mechanism shall allow Subscribers to navigate directly from Channel 26 to the requested Commission Access Channels which shall be located on Channel numbers 8110 (educational access) and 8111 (public access). (iv) Grantee shall consult with the City(or City's designee)to determine the PE Channel information displayed on the Mosaic Channel. However, the information shall have video and audio signal strength, signal quality, and functionality equivalent to the highest quality broadcast and commercial cable/satellite channels carried by the Grantee on its Cable System in a Mosaic format. (v) The Mosaic Channel assigned for use by the City shall be used to navigate to the group of City PE Channels and will be placed near other PEG Mosaic Channels (vi) If through technology changes or innovation in the future, the Grantee discontinues the use of Mosaic presentations, then Grantee shall provide the PE Channels to Subscribers at equivalent visual and audio quality and equivalent functionality as Grantee delivers the highest quality broadcast stations and highest quality commercial cable/satellite channels on its Cable System with no degradation. 23 3056782v1 (b) The Grantee shall not charge for use of the PEG Access Channels, equipment, facilities or services. (c) In no event shall any Access Channel reallocations be made prior to ninety (90) Days written notice to the City by Grantee, except for circumstances beyond Grantee's reasonable control. The Access Channels will be located within reasonable proximity to other commercial video or broadcast Channels, excluding pay-per-view programming offered by Grantee in the City. (d) Grantee agrees not to encrypt the Access Channels differently than other commercial Channels available on the Cable System. (e) In conjunction with any occurrence of any Access Channel(s)relocation, as may be permitted by this Franchise, Grantee shall provide a minimum of Nine Thousand Dollars ($9,000) of in-kind air time per event on advertiser supported Channels (e.g. USA, TNT, TBS, Discovery Channel, or other comparable Channels) for the purpose of airing City's, or its designees',pre-produced thirty(30) second announcement explaining the change in location, or if Grantee does not have air time capabilities a mutually agreed equivalent shall be provided. 7.6 Navigation to Access Channels. Grantee agrees that if it utilizes a visual interface under its control on its Cable System for all Channels, the Access Channels shall be treated in a non-discriminatory fashion consistent with Applicable Laws so that Subscribers will have ready access to Access Channels. This shall not be construed to require Grantee to pay any third party fees that may result from this obligation. 7.7 Ownership of Access Channels. Grantee does not relinquish its ownership of or ultimate right of control over a Channel by designating it for PEG use. A PEG access user— whether an individual, educational or governmental user—acquires no property or other interest by virtue of the use of a Channel position so designated. Grantee shall not exercise editorial control over any public, educational, or governmental use of a Channel position, except Grantee may refuse to transmit any public access program or portion of a public access program that contains obscenity, indecency, or nudity in violation of Applicable Law. 7.8 Noncommercial Use of PEG. Permitted noncommercial uses of the Access Channels shall include by way of example and not limitation: (1) the identification of financial supporters similar to what is provided on public broadcasting stations; or(2)the solicitation of financial support for the provision of PEG programming by the City or third party users for charitable, educational or governmental purposes; or(3)programming offered by accredited, non-profit, educational institutions which may, for example, offer telecourses over a Access Channel. 7.9 Dedicated Fiber Return Lines. (a) Grantee shall provide and maintain, free of charge with no transport costs or other fees or costs imposed, a direct fiber connection and necessary equipment to 24 3056782v1 transmit PEG programming from the City Hall control room racks to the Grantee headend("PEG Origination Connection"). (b) In addition to the PEG Origination Connection, the Grantee shall, free of charge, construct a direct connection and necessary equipment to the programming origination site located at Edina City Hall where PEG programming is originated by the Commission. (c) Grantee shall at all times provide and maintain, free of charge, a drop to the Cable System, required Set-Top Box and free Basic Cable Service and Expanded Basic Service to the City Hall and the location from which PEG programming is originated(currently the playback facility at the Edina City Hall), to allow these facilities to view(live)the downstream PEG programming Channels on Grantee's Cable System so they can monitor the PEG signals and make certain that PEG programming is being properly received (picture and sound)by Subscribers. 7.10 Interconnection. To the extent technically feasible and permitted under Applicable Laws, Grantee will allow necessary interconnection with any newly constructed City and school fiber for noncommercial programming to be promoted and administered by the City as allowed under Applicable Laws and at no additional cost to the City or schools. This may be accomplished through a patch panel or other similar facility and each party will be responsible for the fiber on their respective sides of the demarcation point. Grantee reserves its right to review on a case-by-case basis the technical feasibility of the proposed interconnection. Based on this review Grantee may condition the interconnection on the reasonable reimbursement of Grantee's incremental costs, with no markup for profit, to recoup Grantee's construction costs only. In no event will Grantee impose any type of recurring fee for said interconnection. 7.11 Ancillary Equipment. Any ancillary equipment operated by Grantee for the benefit of PEG Access Channels on Grantee's fiber paths or Cable System, whether referred to switchers, routers or other equipment, will be maintained by Grantee, at no cost to the City or schools for the life of the Franchise. Grantee is responsible for any ancillary equipment on its side of the demarcation point and the City or school is responsible for all other production/playback equipment. 7.12 Future Fiber Return Lines for PEG. At such time that the City determines: (a) that the City desires the capacity to allow Subscribers in the City to receive PEG programming(video or character generated) which may originate from schools, City facilities, other government facilities or other designated facilities (other than those indicated in paragraph 10); or (b) that the City desires to establish or change a location from which PEG programming is originated; or (c) that the City desires to upgrade the Connection to Grantee from an existing signal point of origination, 25 3056782v1 the City will give Grantee written notice detailing the point of origination and the capability sought by the City. Grantee agrees to submit a cost estimate to implement the City's plan within a reasonable period of time but not later than September 1st in the year preceding the request for any costs exceeding Twenty-five Thousand and No/100 Dollars ($25,000). The cost estimate will be on a time and materials basis with no additional markup. After an agreement to reimburse Grantee for Grantee's out of pocket time and material costs, Grantee will implement any necessary Cable System changes within a reasonable period of time. Nothing herein prevents the City, or a private contractor retained by the City, from constructing said return fiber. 7.13 Access Channel Carriage. (a) Any and all costs associated with any modification of the Access Channels or signals after the Access Channels/signals leave the City's designated playback facilities, or any designated playback center authorized by the City shall be borne entirely by Grantee. Grantee shall not cause any programming to override PEG programming on any Access Channel, except by oral or written permission from the City, with the exception of emergency alert signals. (b) The City may request and Grantee shall provide an additional Access Channel when the cumulative time on all the existing Access Channels combined meets the following standard: whenever one of the Access Channels in use during eighty percent (80%) of the weekdays, Monday through Friday, for eighty percent(80%) of the time during a consecutive three (3)hour period for six (6) weeks running, and there is a demand for use of an additional Channel for the same purpose, the Grantee has six (6) months in which to provide a new, Access Channel for the same purpose; provided that, the provision of the additional Channel or Channels does not require the Cable System to install Converters. (c) The VHF spectrum shall be used for one (1) of the public, educational, or governmental specially designated Access Channels. (d) Subject to the terms of this Franchise, the City or its designee shall be responsible for developing, implementing, interpreting and enforcing rules for PEG Access Channel use. (e) The Grantee shall monitor the Access Channels for technical quality to ensure that they meet FCC technical standards including those applicable to the carriage of Access Channels,provided however, that the Grantee is not responsible for the production quality of PEG programming productions. The City, or its designee, shall be responsible for the production and quality of all PEG access programming. Grantee shall carry all components of the standard definition of Access Channel including, but not limited to, closed captioning, stereo audio and other elements associated with the programming. 26 3056782v1 7.14 Access Channel Support. (a) Upon the Effective Date of this Franchise, Grantee shall collect and remit to the City Sixty cents (60¢)per Subscriber per month in support of PEG capital ("PEG Fee"). (b) On August 1, 2017, the City, at its discretion, and upon ninety(90) Days advance written notice to Grantee, may require Grantee to increase the PEG Fee to Sixty- five cents (650)per Subscriber per month for the remaining term of the Franchise. The PEG Fee shall be used by City in its sole discretion to fund PEG access capital expenditures. In no event shall the PEG Fee be assessed in an amount different from that imposed upon the incumbent cable provider. In the event the incumbent cable provider agrees to a higher or lower PEG Fee, Grantee will increase or decrease its PEG Fee upon ninety(90) Days written notice from the City. (c) The PEG Fee is not intended to represent part of the Franchise Fee and is intended to fall within one (1) or more of the exceptions in 47 U.S.C. § 542. The PEG Fee may be categorized, itemized, and passed through to Subscribers as permissible, in accordance with 47 U.S.C. §542 or other Applicable Laws. Grantee shall pay the PEG Fee to the City quarterly at the same time as the payment of Franchise Fees under Section 16.1 of the Franchise. Grantee agrees that it will not offset or reduce its payment of past, present or future Franchise Fees required as a result of its obligation to remit the PEG Fee. (d) Any PEG Fee amounts owing pursuant to this Franchise which remain unpaid more than twenty-five (25) Days after the date the payment is due shall be delinquent and shall thereafter accrue interest at twelve percent(12%)per annum or the prime lending rate published by the Wall Street Journal on the Day the payment was due plus two percent(2%), whichever is greater. 7.15 PEG Technical Quality. (a) Grantee shall not be required to carry a PEG Access Channel in a higher quality format than that of the Channel Signal delivered to Grantee, but Grantee shall not implement a change in the method of delivery of Access Channels that results in a material degradation of signal quality or impairment of viewer reception of Access Channels,provided that this requirement shall not prohibit Grantee from implementing new technologies also utilized for commercial Channels carried on its Cable System. Grantee shall meet FCC signal quality standards when offering Access Channels on its Cable System and shall continue to comply with closed captioning pass-through requirements. There shall be no significant deterioration in an Access Channels signal from the point of origination upstream to the point of reception downstream on the Cable System. (b) Within twenty-four(24) hours of a written request from City to the Grantee identifying a technical problem with a Access Channel and requesting assistance, Grantee will provide technical assistance or diagnostic services to determine whether or 27 3056782v1 not a problem with a PEG signal is the result of matters for which Grantee is responsible and if so, Grantee will take prompt corrective action. If the problem persists and there is a dispute about the cause, then the parties shall meet with engineering representation from Grantee and the City in order to determine the course of action to remedy the problem. 7.16 Access Channel Promotion. Grantee shall allow the City to print and mail a post card for promoting a designated entity's service or generally promoting community programming to households in the City subscribing to Grantee's Cable Service at a cost to the City not to exceed Grantee's out of pocket cost, no less frequently than twice per year, or at such time as a Access Channel is moved or relocated,upon the written request of the City. The post card shall be designed by the City and shall conform to the Grantee's standards and policies for size and weight. Any post card denigrating the Grantee, its service or its programming is not permitted. The City agrees to pay Grantee in advance for the actual cost of such post card. 7.17 Change in Technology. In the event Grantee makes any change in the Cable System and related equipment and facilities or in its signal delivery technology, which requires the City to obtain new equipment in order to be compatible with such change for purposes of transport and delivery of the Access Channels, Grantee shall, at its own expense and free of charge to City or its designated entities,purchase such equipment as may be necessary to facilitate the cablecasting of the Access Channels in accordance with the requirements of the Franchise. 7.18 Relocation of Grantee's Headend. In the event Grantee relocates its headend, Grantee will be responsible for replacing or restoring the existing dedicated fiber connections at Grantee's cost so that all the functions and capacity remain available, operate reliably and satisfy all applicable technical standards and related obligations of the Franchise free of charge to the City or its designated entities. 7.19 Regional Channel Six. Grantee shall make available Regional Channel Six as long as it is required to do so by the State of Minnesota. 7.20 Government Access Channel Functionality. Grantee agrees to provide the capability such that the City, from its City Hall, can switch its government Access Channel in the following ways: (a) Insert live Council meetings from City Hall; (b) Replay government access programming from City Hall; and (c) Transmit character generated programming. (d) Schedule for Grantee to replay City-provided tapes in pre-arranged time slot on the government Access Channel; and (e) Switch to other available programming where the City has legal authority. 28 3056782v1 7.21 Compliance with Minnesota Statutes Chapter 238. In addition to the requirements contained in this Section 7 of this Franchise, Grantee and City shall comply with the PEG requirements mandated by Minn. Stat. 238.084. SECTION 8 REGULATORY PROVISIONS. 8.1 Intent. The City shall have the right to administer and regulate activities under the Franchise up to the full extent permitted by Applicable Law. 8.2 Delegation of Authority to Regulate. The City reserves the right to delegate its regulatory authority wholly or in part to agents of the City, including, but not limited to, an agency which may be formed to regulate several franchises in the region in a manner consistent with Applicable Laws. This may include but shall not be limited to the Commission or other entity as City may determine in its sole discretion. Any existing delegation in place at the time of the grant of this Franchise shall remain intact unless expressly modified by City. 8.3 Areas of Administrative Authority. In addition to any other regulatory authority granted to the City by law or franchise, the City shall have administrative authority in the following areas: (a) Administering and enforcing the provisions of this Franchise, including the adoption of administrative rules and regulations to carry out this responsibility. (b) Coordinating the operation of Access Channels. (c) Formulating and recommending long-range cable communications policy for the Franchise Area. (d) Disbursing and utilizing Franchise revenues paid to the City. (e) Administering the regulation of rates, to the extent permitted by Applicable Law. (f) All other regulatory authority permitted under Applicable Law. The City or its designee shall have continuing regulatory jurisdiction and supervision over the System and the Grantee's operations under the Franchise to the extent allowed by Applicable Law. 8.4 Regulation of Rates and Charges. (a) Right to Regulate. The City reserves the right to regulate rates or charges for any Cable Service within the limits of Applicable Law, to enforce rate regulations prescribed by the FCC, and to establish procedures for said regulation or enforcement. 29 3056782v1 (b) Notice of Change in Rates and Charges. Throughout the term of this Franchise, Grantee shall give the City and all Subscribers within the City at least thirty (30) Days' notice of any intended modifications or additions to Subscriber rates or charges. Nothing in this Subsection shall be construed to prohibit the reduction or waiving of rates or charges in conjunction with promotional campaigns for the purpose of attracting Subscribers or users. (c) Rate Discrimination Prohibited. Within any category of Subscribers, Grantee shall not discriminate among Subscribers with regard to rates and charges made for any service based on considerations of race, color, creed, sex, marital or economic status, national origin, sexual preference, or(except as allowed by Applicable Law) neighborhood of residence, except as otherwise provided herein; and for purposes of setting rates and charges, no categorization of Subscribers shall be made by Grantee on the basis of those considerations. Nevertheless, Grantee shall be permitted to establish (1) discounted rates and charges for providing Cable Service to low-income, handicapped, or low-income elderly Subscribers, (2)promotional rates, and(3) bulk rate and package discount pricing. SECTION 9 BOND. 9.1 Performance Bond. Upon the Effective Date of this Franchise and at all times thereafter Grantee shall maintain with City a bond in the sum of One Hundred Thousand Dollars ($100,000.00) in such form and with such sureties as shall be acceptable to City, conditioned upon the faithful performance by Grantee of this Franchise and the acceptance hereof given by City and upon the further condition that in the event Grantee shall fail to comply with any law, ordinance or regulation, there shall be recoverable jointly and severally from the principal and surety of the bond, any damages or losses suffered by City as a result, including the full amount of any compensation, indemnification or cost of removal of any property of Grantee, including a reasonable allowance for attorneys' fees and costs (with interest at two percent(2%) in excess of the then prime rate), up to the full amount of the bond, and which bond shall further guarantee payment by Grantee of all claims and liens against City or any, public property, and taxes due to City, which arise by reason of the construction, operation, maintenance or use of the Cable System. The City shall provide Grantee reasonable advanced notice of not less than ten (10) Days prior to any draw by the City on the performance bond required under this Section 9. 9.2 Rights. The rights reserved by City with respect to the bond are in addition to all other rights the City may have under this Franchise or any other law. 9.3 Reduction of Bond Amount. City may, in its sole discretion, reduce the amount of the bond. SECTION 10 SECURITY FUND 10.1 Security Fund. If there is an uncured breach by Grantee of a material provision of this Franchise or a pattern of repeated violations of any provision(s) of this Franchise, then 30 3056782v1 Grantee shall,upon written request, establish and provide to the City, as security for the faithful performance by Grantee of all of the provisions of this Franchise, a letter of credit from a financial institution satisfactory to the City in the amount of Twenty Thousand and No/100 Dollars ($20,000.00). In no event shall Grantee fail to post a Twenty Thousand and No/100 Dollar($20,000.00) letter of credit within thirty(30) days receipt of a notice of franchise violation pursuant to this Section 10.1. Failure to post said letter of credit shall constitute a separate material violation of this Franchise,unless the breach is cured within such thirty(30) Day period or longer period allowed under the Franchise. The letter of credit shall serve as a common security fund for the faithful performance by Grantee of all the provisions of this Franchise and compliance with all orders,permits and directions of the City and the payment by Grantee of any claim, liens, costs, expenses and taxes due the City which arise by reason of the construction, operation or maintenance of the Cable System. Interest on this deposit shall be paid to Grantee by the bank on an annual basis. The security may be terminated by the Grantee upon the resolution of the alleged noncompliance. The obligation to establish the security fund required by this paragraph is unconditional. The fund must be established in those circumstances where Grantee disputes the allegation that it is not in compliance, and maintained for the duration of the dispute. If Grantee fails to establish the security fund as required, the City may take whatever action is appropriate to require the establishment of that fund and may recover its costs, reasonable attorneys' fees, and an additional penalty of Two Thousand Dollars ($2,000) in that action. 10.2 Withdrawal of Funds. Provision shall be made to permit the City to withdraw funds from the security fund. Grantee shall not use the security fund for other purposes and shall not assign,pledge or otherwise use this security fund as security for any purpose. 10.3 Restoration of Funds. Within ten(10) Days after notice to it that any amount has been withdrawn by the City from the security fund pursuant to 10.4 of this section, Grantee shall deposit a sum of money sufficient to restore such security fund to the required amount. 10.4 Liquidated Damages. In addition to recovery of any monies owed by Grantee to City or damages to City as a result of any acts or omissions by Grantee pursuant to the Franchise, City in its sole discretion may charge to and collect from the security fund the following liquidated damages: (a) For failure to provide data, documents, reports or information or to cooperate with City during an application process or System review, the liquidated damage shall be One Hundred Dollars ($100.00)per Day for each Day, or part thereof, such failure occurs or continues. (b) For failure to comply with any of the provisions of this Franchise for which a penalty is not otherwise specifically provided pursuant to this Paragraph 10.4, the liquidated damage shall be One Hundred Fifty Dollars ($150.00)per Day for each Day, or part thereof, such failure occurs or continues. (c) For failure to test, analyze and report on the performance of the System following a request by City, the liquidated damage shall be Two Hundred Fifty Dollars ($250.00)per Day for each Day, or part thereof, such failure occurs or continues. 31 3056782v1 (d) Forty-five Days following notice from City of a failure of Grantee to comply with construction, operation or maintenance standards, the liquidated damage shall be Two Hundred Dollars ($200.00)per Day for each Day, or part thereof, such failure occurs or continues. (e) For failure to provide the services Grantee has proposed, including but not limited to the implementation and the utilization of the Access Channels the liquidated damage shall be One Hundred Fifty($150.00)per Day for each Day, or part thereof, such failure occurs or continues. 10.5 Each Violation a Separate Violation. Each violation of any provision of this Franchise shall be considered a separate violation for which separate liquidated damages can be imposed. 10.6 Maximum 120 Days. Any liquidated damages for any given violation shall be imposed upon Grantee for a maximum of one hundred twenty(120) Days. If after that amount of time Grantee has not cured or commenced to cure the alleged breach to the satisfaction of the City, the City may pursue all other remedies. 10.7 Withdrawal of Funds to Pay Taxes. If Grantee fails to pay to the City any taxes due and unpaid; or fails to repay to the City, any damages, costs or expenses which the City shall be compelled to pay by reason of any act or default of the Grantee in connection with this Franchise; or fails, after thirty(30) Days notice of such failure by the City to comply with any provision of the Franchise which the City reasonably determines can be remedied by an expenditure of the security, the City may then withdraw such funds from the security fund. Payments are not Franchise Fees as defined in Section 16 of this Franchise. 10.8 Procedure for Draw on Security Fund. Whenever the City finds that Grantee has allegedly violated one (1) or more terms, conditions or provisions of this Franchise, a written notice shall be given to Grantee. The written notice shall describe in reasonable detail the alleged violation so as to afford Grantee an opportunity to remedy the violation. Grantee shall have thirty (30) Days subsequent to receipt of the notice in which to correct the violation before the City may require Grantee to make payment of damages, and further to enforce payment of damages through the security fund. Grantee may, within ten (10) Days of receipt of notice, notify the City that there is a dispute as to whether a violation or failure has, in fact, occurred. Such notice by Grantee shall specify with particularity the matters disputed by Grantee and shall stay the running of the above-described time. (a) City shall hear Grantee's dispute at the next regularly scheduled or specially scheduled Council meeting. Grantee shall have the right to speak and introduce evidence. The City shall determine if Grantee has committed a violation and shall make written findings of fact relative to its determination. If a violation is found, Grantee may petition for reconsideration. (b) If after hearing the dispute, the claim is upheld by the City, then Grantee shall have thirty(30) Days within which to remedy the violation before the City may require payment of all liquidated damages due it. 32 3056782v1 10.9 Time for Correction of Violation. The time for Grantee to correct any alleged violation may be extended by the City if the necessary action to collect the alleged violation is of such a nature or character as to require more than thirty(30) Days within which to perform provided Grantee commences corrective action within fifteen(15) Days and thereafter uses reasonable diligence, as determined by the City, to correct the violation. 10.10 Grantee's Right to Pay Prior to Security Fund Draw. Grantee shall have the opportunity to make prompt payment of any assessed liquidated damages and if Grantee fails to promptly remit payment to the City, the City may resort to a draw from the security fund in accordance with the terms of this Section 10 of the Franchise. 10.11 Failure to so Replenish Security Fund. If any security fund is not so replaced, City may draw on said security fund for the whole amount thereof and hold the proceeds, without interest, and use the proceeds to pay costs incurred by City in performing and paying for any or all of the obligations, duties and responsibilities of Grantee under this Franchise that are not performed or paid for by Grantee pursuant hereto, including attorneys' fees incurred by the City in so performing and paying. The failure to so replace any security fund may also, at the option of City,be deemed a default by Grantee under this Franchise. The drawing on the security fund by City, and use of the money so obtained for payment or performance of the obligations, duties and responsibilities of Grantee which are in default, shall not be a waiver or release of such default. 10.12 Collection of Funds Not Exclusive Remedy. The collection by City of any damages or monies from the security fund shall not affect any other right or remedy available to City, nor shall any act, or failure to act,by City pursuant to the security fund, be deemed a waiver of any right of City pursuant to this Franchise or otherwise. Notwithstanding this section, however, should the City elect to impose liquidated damages that remedy shall remain the City's exclusive remedy for the one hundred twenty(120) Day period set forth in Section 10.6. SECTION 11 DEFAULT 11.1 Basis for Default. City shall give written notice of default to Grantee if City, in its sole discretion, determines that Grantee has: (a) Violated any material provision of this Franchise or the acceptance hereto or any rule, order, regulation or determination of the City, state or federal government, not in conflict with this Franchise; (b) Attempted to evade any provision of this Franchise or the acceptance hereof; (c) Practiced any fraud or deceit upon City or Subscribers; or (d) Made a material misrepresentation of fact in the application for or negotiation of this Franchise. 33 3056782v1 11.2 Default Procedure. If Grantee fails to cure such default within thirty(30) Days after the giving of such notice (or if such default is of such a character as to require more than thirty(30) Days within which to cure the same, and Grantee fails to commence to cure the same within said thirty(30) Day period and thereafter fails to use reasonable diligence, in City's sole opinion, to cure such default as soon as possible), then, and in any event, such default shall be a substantial breach and City may elect to terminate the Franchise. The City may place the issue of revocation and termination of this Franchise before the governing body of City at a regular meeting. If City decides there is cause or reason to terminate, the following procedure shall be followed: (a) City shall provide Grantee with a written notice of the reason or cause for proposed termination and shall allow Grantee a minimum of thirty(30) Days subsequent to receipt of the notice in which to correct the default. (b) Grantee shall be provided with an opportunity to be heard at a public hearing prior to any decision to terminate this Franchise. (c) If, after notice is given and an opportunity to cure, at Grantee's option, a public hearing is held, and the City determines there was a violation, breach, failure, refusal or neglect, the City may declare by resolution the Franchise revoked and of no further force and effect unless there is compliance within such period as the City may fix, such period may not be less than thirty(30) Days provided no opportunity for compliance need be granted for fraud or misrepresentation. 11.3 Mediation. If the Grantee and City are unable to resolve a dispute through informal negotiations during the period of thirty(30) Days following the submission of the claim giving rise to the dispute by one (1)party to the other, then unless that claim has been waived as provided in the Franchise, such claim may be subject to mediation if jointly agreed upon by both parties. Unless the Grantee and City mutually agree otherwise, such mediation shall be in accordance with the rules of the American Arbitration Association currently in effect at the time of the mediation. A party seeking mediation shall file a request for mediation with the other party to the Franchise and with the American Arbitration Association. The request may be made simultaneously with the filing of a complaint, but, in such event, mediation shall proceed in advance of legal proceedings only if the other party agrees to participate in mediation. Mutually agreed upon Mediation shall stay other enforcement remedies of the parties for a period of ninety (90) days from the date of filing,unless stayed for a longer period by agreement of the Grantee and City. The Grantee and City shall each pay one-half of the mediator's fee and any filing fees. The mediation shall be held in the City unless another location is mutually agreed upon. Agreements reached in mediation shall be enforceable as a settlement agreement in any court having jurisdiction thereof. Nothing herein shall serve to modify or on any way delay the franchise enforcement process set forth in Section 10 of this Franchise. 11.4 Failure to Enforce. Grantee shall not be relieved of any of its obligations to comply promptly with any provision of the Franchise by reason of any failure of the City to enforce prompt compliance, and City's failure to enforce shall not constitute a waiver of rights or acquiescence in Grantee's conduct. 34 3056782v1 11.5 Compliance with the Laws. (a) If any federal or state law or regulation shall require or permit City or Grantee to perform any service or act or shall prohibit City or Grantee from performing any service or act which may be in conflict with the terms of this Franchise, then as soon as possible following knowledge thereof, either party shall notify the other of the point in conflict believed to exist between such law or regulation. Grantee and City shall conform to state laws and rules regarding cable communications not later than one (1) year after they become effective,unless otherwise stated, and shall conform to federal laws and regulations regarding cable as they become effective. (b) If any term, condition or provision of this Franchise or the application thereof to any Person or circumstance shall, to any extent, be held to be invalid or unenforceable, the remainder hereof and the application of such term, condition or provision to Persons or circumstances other than those as to whom it shall be held invalid or unenforceable shall not be affected thereby, and this Franchise and all the terms, provisions and conditions hereof shall, in all other respects, continue to be effective and complied with provided the loss of the invalid or unenforceable clause does not substantially alter the agreement between the parties. In the event such law, rule or regulation is subsequently repealed, rescinded, amended or otherwise changed so that the provision which had been held invalid or modified is no longer in conflict with the law, rules and regulations then in effect, said provision shall thereupon return to full force and effect and shall thereafter be binding on Grantee and City. SECTION 12 FORECLOSURE AND RECEIVERSHIP 12.1 Foreclosure. Upon the foreclosure or other judicial sale of the Cable System, Grantee shall notify the City of such fact and such notification shall be treated as a notification that a change in control of Grantee has taken place, and the provisions of this Franchise governing the consent to transfer or change in ownership shall apply without regard to how such transfer or change in ownership occurred. 12.2 Receivership. The City shall have the right to cancel this Franchise subject to any applicable provisions of state law, including the Bankruptcy Act, one hundred twenty(120) Days after the appointment of a receiver or trustee to take over and conduct the business of Grantee, whether in receivership, reorganization,bankruptcy or other action or proceeding, unless such receivership or trusteeship shall have been vacated prior to the expiration of said one hundred twenty(120) Days, or unless: (a) Within one hundred twenty(120) Days after his election or appointment, such receiver or trustee shall have fully complied with all the provisions of this Franchise and remedied all defaults thereunder; and, (b) Such receiver or trustee, within said one hundred twenty(120) Days, shall have executed an agreement, duly approved by the Court having jurisdiction in the 35 3056782v1 premises, whereby such receiver or trustee assumes and agrees to be bound by each and every provision of this Franchise. SECTION 13 REPORTING REQUIREMENTS 13.1 Quarterly Reports. Within forty-five (45) calendar days after the end of each calendar quarter, Grantee shall submit to the City along with its Franchise Fee payment a report showing the basis for computation of such fees prepared by an officer, or designee of Grantee showing the basis for the computation of the Franchise Fees paid during that period in a form and substance substantially equivalent to Exhibit B attached hereto. This report shall separately indicate revenues received by Grantee within the City including,but not limited to such items as listed in the definition of"Gross Revenues" at Section 1 of this Franchise. 13.2 Monitoring and Compliance Reports. Upon request,but no more than once a year, Grantee shall provide a written report of any and all applicable FCC technical performance tests for the residential network required in FCC Rules and Regulations as now or hereinafter constituted. In addition, Grantee shall provide City with copies of reports of the semi-annual test and compliance procedures applicable to Grantee and established by this Franchise no later than thirty(30) Days after the completion of each series of tests. 13.3 Reports. Upon request of the City and in no event later than thirty(30) Days from the date of receipt of such request, Grantee shall, free of charge,prepare and furnish to the City, at the times and in the form prescribed that Grantee is technically capable of producing, such additional reports with respect to its operation, affairs, transactions, or property, as may be reasonably necessary to ensure compliance with the terms of this Franchise. Grantee and City may in good faith agree upon taking into consideration Grantee's need for the continuing confidentiality as prescribed herein. Neither City nor Grantee shall unreasonably demand or withhold information requested pursuant with the terms of this Franchise. 13.4 Communications with Regulatory Agencies. (a) Upon written request, Grantee shall submit to City copies of any pleading, applications, notifications, communications and documents of any kind, submitted by Grantee or its Affiliates to any federal, State or local courts, regulatory agencies and other government bodies if such documents directly relate to the operations of Grantee `s Cable System within the Franchise Area. Grantee shall submit such documents to City no later than thirty(30) Days after receipt of City's request. Grantee shall not claim confidential, privileged or proprietary rights to such documents unless under federal, State, or local law such documents have been determined to be confidential by a court of competent jurisdiction, or a federal or State agency. With respect to all other reports, documents and notifications provided to any federal, State or local regulatory agency as a routine matter in the due course of operating Grantee `s Cable System within the Franchise Area, Grantee shall make such documents available to City upon City's written request. (b) In addition, Grantee and its Affiliates shall within ten (10) Days of any communication to or from any judicial or regulatory agency regarding any alleged or 36 3056782v1 actual violation of this Franchise, City regulation or other requirement relating to the System,use its best efforts to provide the City a copy of the communication, whether specifically requested by the City to do so or not. SECTION 14 CUSTOMER SERVICE POLICIES 14.1 Response to Customers and Cooperation with City. Grantee shall promptly respond to all requests for service, repair, installation and information from Subscribers. Grantee acknowledges the City's interest in the prompt resolution of all cable complaints and shall work in close cooperation with the City to resolve complaints. 14.2 Definition of"Complaint." For the purposes of Section 14, with the exception of Subsection 14.5, a"complaint" shall mean any communication to Grantee or to the City by a Subscriber or a Person who has requested Cable Service; a Person expressing dissatisfaction with any service,performance, or lack thereof, by Grantee under the obligations of this Franchise. 14.3 Customer Service Agreement and Written Information. Grantee shall provide to Subscribers a comprehensive service agreement and information in writing for use in establishing Subscriber service. Written information shall, at a minimum, contain the following information: (a) Services to be provided and rates for such services. (b) Billing procedures. (c) Service termination procedure. (d) Change in service notifications. (e) Liability specifications. (f) Set Top Boxes/Subscriber terminal equipment policy. (g) How complaints are handled including Grantee's procedure for investigation and resolution of Subscriber complaints. (h) The name, address, and phone number of the Person identified by the City as responsible for handling cable questions and complaints for the City. This information shall be prominently displayed and Grantee shall submit the information to the City for review and approval as to its content and placement on Subscriber billing statements. (i) A copy of the written information shall be provided to each Subscriber at the time of initial Connection and any subsequent reconnection. 37 3056782v1 14.4 Reporting Complaints. (a) The requirements of this Section 14.4 shall be subject to federal law regarding Subscriber privacy. Grantee shall maintain all Subscriber data available for City inspection. Subscriber data shall include the date, name, address, telephone number of Subscriber complaints as well as the subject of the complaint, date and type of action taken to resolve the complaint, any additional action taken by Grantee or the Subscriber. The data shall be maintained in a way that allows for simplified access of the data by the City. (b) Subject to federal law and upon reasonable request by the City, Grantee shall, within a reasonable amount of time,provide City with such Subscriber data for its review. 14.5 Customer Service Standards. The City hereby adopts the customer service standards set forth in Part 76, §76.309 of the FCC's rules and regulations, as amended. Grantee shall, upon request, which request shall include the reason for the request(such as complaints received or other reasonable evidence of concern), provide City with information which shall describe in detail Grantee's compliance with each and every term and provision of this Section 14.5. Grantee shall comply in all respects with the customer service requirements established by the FCC and those set forth herein. To the extent that this Franchise imposes requirements greater than those established by the FCC, Grantee reserves whatever rights it may have to recover the costs associated with compliance in any manner consistent with Applicable Law. 14.6 Local Office. During the term of the Franchise the Grantee shall comply with one of the following requirements: (a) Grantee shall maintain a convenient local customer service and bill payment location for matters such as receiving Subscriber payments, handling billing questions, equipment replacement and customer service information. Grantee shall comply with the standards and requirements for customer service set forth below during the term of this Franchise. (b) Grantee shall maintain convenient local Subscriber service and bill payment locations for the purpose of receiving Subscriber payments or equipment returns. Unless otherwise requested by the Subscriber, Grantee shall deliver replacement equipment directly to the Subscriber at no cost to the Subscriber. The Grantee shall maintain a business office or offices for the purpose of receiving and resolving all complaints regarding the quality of service, equipment malfunctions, billings disputes and similar matters. The office must be reachable by a local, toll-free telephone call, and Grantee shall provide the City with the name, address and telephone number of an office that will act as the Grantee's agent to receive complaints, regarding quality of service, equipment malfunctions, billings, and similar matters. At a minimum Grantee shall also provide the following: (i) Subscribers can remit payments at multiple third party commercial locations within the City(such as grocery stores or the Western Union). 38 3056782v1 (ii) Grantee will provide a service technician to any Qualified Living Unit in the City, free of charge to the Subscriber, where necessary to install, replace or troubleshoot equipment issues. (iii) Subscribers shall be able to return and receive equipment, free of charge, via national overnight courier service (such as Fed Ex or UPS) if a service technician is not required to visit the Subscriber's Qualified Living Unit. (iv) In the event Grantee provides Cable Service to a minimum of thirty percent(30%) of the total number of Cable Service Subscribers in the City served by cable operators franchised by the City, the Grantee shall then be required to also comply with the requirements of Section 14.6 (a) above. 14.7 Cable System office hours and telephone availability. (a) Grantee will maintain a local, toll-free or collect call telephone access line which will be available to its Subscribers twenty-four(24)hours a Day, seven(7) Days a week. (i) Trained Grantee representatives will be available to respond to customer telephone inquiries during Normal Business Hours. (ii) After Normal Business Hours, the access line may be answered by a service or an automated response system, including an answering machine. Inquiries received after Normal Business Hours must be responded to by a trained Grantee representative on the next business Day. (b) Under Normal Operating Conditions, telephone answer time by a customer representative, including wait time, shall not exceed thirty(30) seconds when the connection is made. If the call needs to be transferred, transfer time shall not exceed thirty(30) seconds. These standards shall be met no less than ninety percent(90%) of the time under Normal Operating Conditions, measured on a quarterly basis. (c) Grantee shall not be required to acquire equipment or perform surveys to measure compliance with the telephone answering standards above unless an historical record of complaints indicates a clear failure to comply. (d) Under Normal Operating Conditions, the customer will receive a busy signal less than three percent(3%) of the time. (e) Customer service center and bill payment locations will be open at least during Normal Business Hours and will be conveniently located. 14.8 Installations, Outages and Service Calls. Under Normal Operating Conditions, each of the following standards will be met no less than ninety-five percent (95%) of the time measured on a quarterly basis: 39 3056782v1 (a) Standard Installations will be performed within seven (7)business days after an order has been placed. "Standard" Installations are those to a Qualified Living Unit. (b) Excluding conditions beyond the control of Grantee, Grantee will begin working on"Service Interruptions"promptly and in no event later than twenty-four(24) hours after the interruption becomes known. Grantee must begin actions to correct other Service problems the next business Day after notification of the Service problem. (c) The "appointment window" alternatives for Installations, Service calls, and other Installation activities will be either a specific time or, at maximum, a four(4) hour time block during Normal Business Hours. (Grantee may schedule Service calls and other Installation activities outside of Normal Business Hours for the express convenience of the customer.) (d) Grantee may not cancel an appointment with a customer after the close of business on the business Day prior to the scheduled appointment. (e) If Grantee's representative is running late for an appointment with a customer and will not be able to keep the appointment as scheduled, the customer will be contacted. The appointment will be rescheduled, as necessary, at a time which is convenient for the customer. 14.9 Communications between Grantee and Subscribers. (a) Refunds. Refund checks will be issued promptly, but no later than either: (i) The customer's next billing cycle following resolution of the request or thirty(30) Days, whichever is earlier, or (ii) The return of the equipment supplied by Grantee if Cable Service is terminated. (b) Credits. Credits for Cable Service will be issued no later than the customer's next billing cycle following the determination that a credit is warranted. 14.10 Billing. (a) Consistent with 47 C.F.R. § 76.1619,bills will be clear, concise and understandable. Bills must be fully itemized, with itemizations including, but not limited to, Basic Cable Service and premium Cable Service charges and equipment charges. Bills will also clearly delineate all activity during the billing period, including optional charges, rebates and credits. (b) In case of a billing dispute, Grantee must respond to a written complaint from a Subscriber within thirty(30) Days. 40 3056782v1 14.11 Subscriber Information. Grantee will provide written information on each of the following areas at the time of Installation of Service, at least annually to all Subscribers, and at any time upon request: (a) Products and Services offered; (b) Prices and options for programming services and conditions of subscription to programming and other services; (c) Installation and Service maintenance policies; (d) Instructions on how to use the Cable Service; (e) Channel positions of programming carried on the System; and (f) Billing and complaint procedures, including the address and telephone number of the City's cable office. Subscribers shall be advised of the procedures for resolution of complaints about the quality of the television signal delivered by Grantee, including the address of the responsible officer of the City. Subscribers will be notified of any changes in rates, programming services or Channel positions as soon as possible in writing. Notice must be given to Subscribers a minimum of thirty(30) Days in advance of such changes if the change is within the control of Grantee. In addition, Grantee shall notify Subscribers thirty(30) Days in advance of any significant changes in the information required by this Section 14.11. 14.12 Notice or Rate Programming Change. In addition to the requirement of this Section 14.12 regarding advance notification to Subscribers of any changes in rates, programming services or Channel positions, Grantee shall give thirty(30) Days written notice to both Subscribers and the City before implementing any rate or Service change. If required by Applicable Law, such notice shall state the precise amount of any rate change and briefly explain in readily understandable fashion the cause of the rate change (e.g., inflation, change in external costs or the addition/deletion of Channels). When the change involves the addition or deletion of Channels, each Channel added or deleted must be separately identified. For purposes of the carriage of digital broadcast signals, Grantee need only identify for Subscribers, the television signal added and not whether that signal may be multiplexed during certain dayparts. 14.13 Subscriber Contracts. Grantee shall,upon written request, provide the City with any standard form residential Subscriber contract utilized by Grantee. If no such written contract exists, Grantee shall file with the City a document completely and concisely stating the length and terms of the Subscriber contract offered to customers. The length and terms of any standard form Subscriber contract(s) shall be available for public inspection during Normal Business Hours. A list of Grantee's current Subscriber rates and charges for Cable Service shall be maintained on file with City and shall be available for public inspection. 14.14 Refund Policy. If a Subscriber's Cable Service is interrupted or discontinued, without cause, for twenty-four(24) or more consecutive hours, Grantee shall, upon request by 41 3056782v1 the Subscriber, credit such Subscriber pro rata for such interruption. For this purpose, every month will be assumed to have thirty(30) Days. 14.15 Late Fees. Grantee shall comply with all applicable state and federal laws with respect to any assessment, charge, cost, fee or sum, however characterized, that Grantee imposes upon a Subscriber for late payment of a bill. The City reserves the right to enforce Grantee's compliance with all Applicable Laws to the maximum extent legally permissible. 14.16 Disputes. All Subscribers and members of the general public may direct complaints, regarding Grantee's Service or performance to the chief administrative officer of the City or the chief administrative officer's designee, which may be a board or Commission of the City. 14.17 Customer Bills. Customer bills shall be designed in such a way as to present the information contained therein clearly and comprehensibly to Customers, and in a way that(A) is not misleading and(B) does not omit material information. Notwithstanding anything to the contrary in Section 14.10, above, Grantee may, in its sole discretion, consolidate costs on Customer bills as may otherwise be permitted by Section 622(c) of the Cable Act(47 U.S.C. §542(c)). 14.18 Failure to Resolve Complaints. Grantee must investigate and act upon any service complaint promptly and in no event later than twenty-four(24)hours after the problem becomes known. Grantee must address, and if feasible, resolve service complaints within three (3) calendar days. 14.19 Maintain a Complaint Phone Line. Grantee shall maintain a local or toll-free telephone Subscriber complaint line, available to its Subscribers twenty-four(24)hours per Day, seven(7) Days a week. 14.20 Notification of Complaint Procedure. Grantee shall have printed clearly and prominently on each Subscriber bill and in the customer service agreement provided for in Section 14.3, the twenty-four(24)hour Grantee phone number for Subscriber complaints. Additionally, Grantee shall provide information to customers concerning the procedures to follow when they are unsatisfied with measures taken by Grantee to remedy their complaint. This information will include the phone number of the City office or Person designated to handle complaints. Additionally, where possible Grantee shall state that complaints should be made to Grantee prior to contacting the City. 14.21 Subscriber Privacy. (a) To the extent required by Minn. Stat. §238.084 Subd. 1(s) Grantee shall comply with the following: No signals including signals of a Class IV Channel may be transmitted from a Subscriber terminal for purposes of monitoring individual viewing patterns or practices without the express written permission of the Subscriber. The request for permission must be contained in a separate document with a prominent statement that the Subscriber is authorizing the permission in full knowledge of its provisions. Such written permission shall be for a limited period of time not to exceed 42 3056782v1 one (1) year which may be renewed at the option of the Subscriber. No penalty shall be invoked for a Subscriber's failure to provide or renew such permission. The permission shall be revocable at any time by the Subscriber without penalty of any kind whatsoever. (b) No information or data obtained by monitoring transmission of a signal from a Subscriber terminal, including but not limited to lists of the names and addresses of Subscribers or any lists that identify the viewing habits of Subscribers shall be sold or otherwise made available to any party other than to Grantee or its agents for Grantee's business use, and also to the Subscriber subject of that information, unless Grantee has received specific written permission from the Subscriber to make such data available. The request for permission must be contained in a separate document with a prominent statement that the Subscriber is authorizing the permission in full knowledge of its provisions. Such written permission shall be for a limited period of time not to exceed one (1) year which may be renewed at the option of the Subscriber. No penalty shall be invoked for a Subscriber's failure to provide or renew such permission. The permission shall be revocable at any time by the Subscriber without penalty of any kind whatsoever. (c) Written permission from the Subscriber shall not be required for the conducting of system wide or individually addressed electronic sweeps for the purpose of verifying System integrity or monitoring for the purpose of billing. Confidentiality of such information shall be subject to the provision set forth in subparagraph (b) of this section. 14.22 Grantee Identification. Grantee shall provide all customer service technicians and all other Grantee employees entering private property with appropriate picture identification so that Grantee employees may be easily identified by the property owners and Subscribers. SECTION 15 SUBSCRIBER PRACTICES 15.1 Subscriber Rates. There shall be no charge for disconnection of any installation or outlet. If any Subscriber fails to pay a properly due monthly Subscriber fee, or any other properly due fee or charge, Grantee may disconnect the Subscriber's service outlet, provided, however, that such disconnection shall not be effected until after the later of: (i) forty-five (45) Days after the original due date of said delinquent fee or charge; or(ii) ten(10) Days after delivery to Subscriber of written notice of the intent to disconnect. If a Subscriber pays before expiration of the later of(i) or(ii), Grantee shall not disconnect. After disconnection, upon payment in full of the delinquent fee or charge and the payment of a reconnection charge, Grantee shall promptly reinstate the Subscriber's Cable Service. 15.2 Refunds to Subscribers shall be made or determined in the following manner: (a) If Grantee fails, upon request by a Subscriber, to provide any service then being offered, Grantee shall promptly refund all deposits or advance charges paid for the service in question by said Subscriber. This provision does not alter Grantee's responsibility to Subscribers under any separate contractual agreement or relieve Grantee of any other liability. 43 3056782v1 (b) If any Subscriber terminates any monthly service because of failure of Grantee to render the service in accordance with this Franchise, Grantee shall refund to such Subscriber the proportionate share of the charges paid by the Subscriber for the services not received. This provision does not relieve Grantee of liability established in other provisions of this Franchise. (c) If any Subscriber terminates any monthly service prior to the end of a prepaid period, a proportionate amount of any prepaid Subscriber service fee,using the number of days as a basis, shall be refunded to the Subscriber by Grantee. SECTION 16 COMPENSATION AND FINANCIAL PROVISIONS. 16.1 Franchise Fees. During the term of the Franchise, Grantee shall pay to the City a Franchise Fee of five percent (5%) of Gross Revenues. If any such law, regulation or valid rule alters the five percent(5%) Franchise Fee ceiling enacted by the Cable Act, then the City shall have the authority to (but shall not be required to) increase the Franchise Fee accordingly, provided such increase is for purposes not inconsistent with Applicable Law. In the event Grantee bundles or combines Cable Services (which are subject to the Franchise Fee)with non- Cable Services (which are not subject to the Franchise Fee) so that Subscribers pay a single fee for more than one (1) class of service resulting in a discount on Cable Services, Grantee agrees that for the purpose of calculation of the Franchise Fee, it shall allocate to Cable Service revenue no less than a pro rata share of the revenue received for the bundled or combined services. The pro rata share shall be computed on the basis of the published charge for each service in the bundled or combined classes of services when purchased separately. (a) Franchise Fees shall be paid quarterly not later than forty-five (45) Days following the end of a given quarter. In accordance with Section 16 of this Franchise, Grantee shall file with the City a Franchise Fee payment worksheet, attached as Exhibit B, signed by an authorized representative of Grantee, which identifies Gross Revenues earned by Grantee during the period for which payment is made. No acceptance of any payment shall be construed as an accord that the amount paid is in fact, the correct amount, nor shall such acceptance of payment be construed as a release of any claim which the City may have for further or additional sums payable under the provisions of this section. (b) Neither current nor previously paid Franchise Fees shall be subtracted from the Gross Revenue amount upon which Franchise Fees are calculated and due for any period,unless otherwise required by Applicable Law. (c) Any Franchise Fees owing pursuant to this Franchise which remain unpaid more than forty-five (45) Days after the dates specified herein shall be delinquent and shall thereafter accrue interest at twelve percent(12%)per annum or two percent(2%) above prime lending rate as quoted by the Wall Street Journal, whichever is greater. (d) In no event shall the Grantee be required to pay a Franchise Fee percentage in excess of that paid by incumbent cable provider. 44 3056782v1 16.2 Auditing and Financial Records. Throughout the term of this Franchise, the Grantee agrees that the City,upon reasonable prior written notice of not less than twenty(20) Days to the Grantee, may review such of the Grantee's books and records regarding the operation of the Cable System and the provision of Cable Service in the Franchise Area which are reasonably necessary to monitor and enforce Grantee's compliance with the provisions of this Franchise. Grantee shall provide such requested information as soon as possible and in no event more than thirty(30) Days after the notice unless Grantee explains that it is not feasible to meet this timeline and provides a written explanation for the delay and an estimated reasonable date for when such information will be provided. All such documents pertaining to financial matters that may be the subject of an inspection by the City shall be retained by the Grantee for a minimum period of six (6) years,pursuant to Minnesota Statutes Section 541.05. The Grantee shall not deny the City access to any of the Grantee's records on the basis that the Grantee's records are under the control of any parent corporation, Affiliated entity or a third party. The City may request in writing copies of any such records or books that are reasonably necessary, and the Grantee shall provide such copies within thirty(30) Days of the receipt of such request. One (1) copy of all reports and records required under this or any other section shall be furnished to the City at the sole expense of the Grantee. If the requested books and records are too voluminous, or for security reasons cannot be copied or removed, then the Grantee may request, in writing within ten(10) Days of receipt of such request, that the City inspect them at the Grantee's local offices or at one of Grantee's offices more convenient to City or its duly authorized agent. If any books or records of the Grantee are not kept in such office and not made available in copies to the City upon written request as set forth above, and if the City determines that an examination of such records is necessary for the enforcement of this Franchise, then all reasonable travel expenses incurred in making such examination shall be paid by the Grantee. 16.3 Review of Record Keeping Methodology. Grantee agrees to meet with representative of the City upon request to review its methodology of record-keeping, financial reporting, computing Franchise Fee obligations, and other procedures the understanding of which the City deems necessary for understanding the meaning of reports and records related to the Franchise. 16.4 Audit of Records. The City or its authorized agent may at any time and at the City's own expense conduct an independent audit of the revenues of Grantee in order to verify the accuracy of Franchise Fees paid to the City. Grantee shall cooperate fully in the conduct of such audit and shall produce all necessary records related to the provision of Cable Services regardless of which corporate entity controls such records. In the event it is determined through such audit that Grantee has underpaid Franchise Fees in an amount of five percent (5%) or more than was due the City, then Grantee shall reimburse the City for the entire reasonable cost of the audit within thirty(30) days of the completion and acceptance of the audit by the City. 16.5 Records to be reviewed. The City agrees to request access to only those books and records, in exercising its rights under this section, which it deems reasonably necessary for the enforcement and administration of the Franchise. 45 3056782v1 16.6 Indemnification by Grantee. (a) Grantee shall, at its sole expense, fully indemnify, defend and hold harmless the City, and in their capacity as such, the officers and employees thereof, from and against any and all claims, suits, actions, liability and judgments for damage or otherwise except those arising wholly from negligence on the part of the City or its employees; for actual or alleged injury to persons or property, including loss of use of property due to an occurrence, whether or not such property is physically damaged or destroyed, in any way arising out of or through or alleged to arise out of or through the acts or omissions of Grantee or its officers, agents, employees, or contractors or to which Grantee's or its officers, agents, employees or contractors acts or omissions in any way contribute, and whether or not such acts or omissions were authorized or contemplated by this Franchise or Applicable Law; arising out of. or alleged to arise out of any claim for damages for Grantee's invasion of the right of privacy, defamation of any Person, firm or corporation, or the violation of infringement of any copyright, trademark, trade name, service mark or patent, or of any other right of any Person, firm or corporation; arising out of or alleged to arise out of Grantee's failure to comply with the provisions of any Applicable Law. Nothing herein shall be deemed to prevent the City, its officers, or its employees from participating in the defense of any litigation by their own counsel at such parties' expense. Such participation shall not under any circumstances relieve Grantee from its duty of defense against liability or of paying any judgment entered against the City, its officers, or its employees. (b) Grantee shall contemporaneously with this Franchise execute an Indemnity Agreement in a form acceptable to the City attached hereto as Exhibit C, which shall indemnify, defend and hold the City harmless for any claim for injury, damage, loss, liability, cost or expense, including court and appeal costs and reasonable attorneys' fees or reasonable expenses arising out of the actions of the City in granting this Franchise. This obligation includes any claims by another franchised cable operator against the City that the terms and conditions of this Franchise are less burdensome than another franchise granted by the City or that this Franchise does not satisfy the requirements of Applicable Law(s). 16.7 Grantee Insurance. Upon the Effective Date, Grantee shall, at its sole expense take out and maintain during the term of this Franchise public liability insurance with a company licensed to do business in the state of Minnesota with a rating by A.M. Best& Co. of not less than"A-"that shall protect the Grantee, City and its officials, officers, directors, employees and agents from claims which may arise from operations under this Franchise, whether such operations be by the Grantee, its officials, officers, directors, employees and agents or any subcontractors of Grantee. This liability insurance shall include, but shall not be limited to, protection against claims arising from bodily and personal injury and damage to property, resulting from Grantee's vehicles, products and operations. The amount of insurance for single limit coverage applying to bodily and personal injury and property damage shall not be less than Three Million Dollars ($3,000,000). The liability policy shall include: (a) The policy shall provide coverage on an "occurrence"basis. 46 3056782v1 (b) The policy shall cover personal injury as well as bodily injury. (c) The policy shall cover blanket contractual liability subject to the standard universal exclusions of contractual liability included in the carrier's standard endorsement as to bodily injuries,personal injuries and property damage. (d) Broad form property damage liability shall be afforded. (e) City shall be named as an additional insured on the policy. (f) An endorsement shall be provided which states that the coverage is primary insurance with respect to claims arising from Grantee's operations under this Franchise and that no other insurance maintained by the Grantor will be called upon to contribute to a loss under this coverage. (g) Standard form of cross-liability shall be afforded. (h) An endorsement stating that the policy shall not be canceled without thirty (30) Days notice of such cancellation given to City (i) City reserves the right to adjust the insurance limit coverage requirements of this Franchise no more than once every three (3) years. Any such adjustment by City will be no greater than the increase in the State of Minnesota Consumer Price Index (all consumers) for such three (3) year period. (j) Upon the Effective Date, Grantee shall submit to City a certificate documenting the required insurance, as well as any necessary properly executed endorsements. The certificate and documents evidencing insurance shall be in a form acceptable to City and shall provide satisfactory evidence that Grantee has complied with all insurance requirements. Renewal certificates shall be provided to City prior to the expiration date of any of the required policies. City will not be obligated, however, to review such endorsements or certificates or other evidence of insurance, or to advise Grantee of any deficiencies in such documents and receipt thereof shall not relieve Grantee from, nor be deemed a waiver of, City's right to enforce the terms of Grantee's obligations hereunder. City reserves the right to examine any policy provided for under this paragraph or to require further documentation reasonably necessary to form an opinion regarding the adequacy of Grantee's insurance coverage. SECTION 17 MISCELLANEOUS PROVISIONS. 17.1 Posting and Publication. Grantee shall assume the cost of posting and publication of this Franchise as such posting and publication is required by law and such is payable upon Grantee's filing of acceptance of this Franchise. 17.2 Guarantee of Performance. Grantee agrees that it enters into this Franchise voluntarily in order to secure and in consideration of the grant from the City of a five (5) year 47 3056782v1 Franchise. Performance pursuant to the terms and conditions of this Franchise is guaranteed by Grantee. 17.3 Entire Agreement. This Franchise contains the entire agreement between the parties, supersedes all prior agreements or proposals except as specifically set forth herein, and cannot be changed orally but only by an instrument in writing executed by the parties. This Franchise is made pursuant to Minnesota Statutes Chapter 238 and is intended to comply with all requirements set forth therein. 17.4 Consent. Wherever the consent or approval of either Grantee or the City is specifically required in this agreement, such consent or approval shall not be unreasonably withheld. 17.5 Franchise Acceptance. No later than forty-five (45) Days following City Council approval of this Franchise, Grantee shall execute and return to the City three (3) original franchise agreements. The executed agreements shall be returned to the City accompanied by performance bonds, and evidence of insurance, all as provided in this Franchise. The City's "Notice of Intent to Consider an Application for a Franchise" ("Notice")provided, consistent with Minn. Stat. 238.081 subd. 8, that applicants would be required to reimburse the City for all necessary costs of processing a cable communications franchise. Grantee submitted an application fee with its application to the City. The Notice further provided that any unused portion of the application fee would be returned and any additional fees required to process the application and franchise, beyond the application fee, would be assessed to the successful applicant. The Grantee shall therefore submit to the City at the time of acceptance of this Franchise, a check made payable to the City of Eden Prairie, Minnesota for all additional fees and costs incurred by the City. Within thirty(30) days of City Council approval, the City shall provide Grantee with a letter specifying such additional costs following approval of this Franchise by the City Council. In the event Grantee fails to accept this Franchise, or fails to provide the required documents and payments, this Franchise shall be null and void. The Grantee agrees that despite the fact that its written acceptance may occur after the Effective Date, the obligations of this Franchise shall become effective on the Effective Date. 17.6 Amendment of Franchise. Grantee and City may agree, from time to time, to amend this Franchise. Such written amendments may be made subsequent to a review session pursuant to Section 2.7 or at any other time if City and Grantee agree that such an amendment will be in the public interest or if such an amendment is required due to changes in federal, state or local laws; provided, however, nothing herein shall restrict City's exercise of its police powers. 17.7 Notice. Any notification that requires a response or action from a party to this Franchise, within a specific time-frame or would trigger a timeline that would affect one or both parties' rights under this Franchise, shall be made in writing and shall be sufficiently given and served upon the other party by hand delivery, first class mail, registered or certified, return receipt requested, postage prepaid, or by reputable overnight courier service and addressed as follows: 48 3056782v1 To the City: City Manager, City of Eden Prairie 8080 Mitchell Road Eden Prairie, MN 55344 Courtesy Copy to: Southwest Suburban Cable Commission c/o Moss &Barnett (BTG) 150 South Fifth Street, Suite 1200 Minneapolis, MN 55402 To the Grantee: CenturyLink Attn: Public Policy 1801 California Street, 10th Floor Denver, Colorado 80202 Courtesy Copy to: Qwest Broadband Services, Inc. Attn: Public Policy 200 South Fifth Street, 21st Floor Minneapolis, MN 55402 Recognizing the widespread usage and acceptance of electronic forms of communication, emails will be acceptable as formal notification related to the conduct of general business amongst the parties to this contract, including but not limited to programming and price adjustment communications. Such communication should be addressed and directed to the Person of record as specified above. 17.8 Force Majeure. In the event that either party is prevented or delayed in the performance of any of its obligations,under this Franchise by reason of acts of God, floods, fire, hurricanes, tornadoes, earthquakes, or other unavoidable casualties, insurrection, war, riot, vandalism, strikes, delays in receiving permits where it is not the fault of Grantee, public easements, sabotage, acts or omissions of the other party, or any other similar event beyond the reasonable control of that party, it shall have a reasonable time under the circumstances to perform such obligation under this Franchise, or to procure a substitute for such obligation to the reasonable satisfaction of the other party. 17.9 Work of Contractors and Subcontractors. Work by contractors and subcontractors are subject to the same restrictions, limitations and conditions as if the work were performed by Grantee. Grantee shall be responsible for all work performed by its contractors and subcontractors, and others performing work on its behalf as if the work were performed by it and shall ensure that all such work is performed in compliance with this Franchise, the City Code and other Applicable Law, and shall be jointly and severally liable for all damages and correcting all damage caused by them. It is Grantee's responsibility to ensure that contractors, subcontractors or other Persons performing work on Grantee's behalf are familiar with the requirements of this Franchise, the City Code and other Applicable Laws governing the work performed by them. 49 3056782v1 17.10 Abandonment of System. Grantee may not abandon the System or any portion thereof used exclusively for Cable Services, without having first given three (3) months written notice to City and conforming to the City Code, as well as the state right-of-way rules, Minn. Rules, Chapter 7819. To the extent required by Minn. Stat. §238.084 Subd. 1 (w), Grantee shall compensate City for damages resulting from the abandonment. 17.11 Removal After Abandonment. In the event of Grantee's abandonment of the System used exclusively for Cable Services, City shall have the right to require Grantee to conform to the City Code, as well as the state right-of-way rules, Minn. Rules, Chapter 7819. If Grantee has failed to commence removal of System, or such part thereof as was designated by City, within thirty(30) Days after written notice of City's demand for removal consistent with City Code and Minn. Rules, Ch. 7819, is given, or if Grantee has failed to complete such removal within twelve (12) months after written notice of City's demand for removal is given City shall have the right to apply funds secured by the performance bond toward removal and/or declare all right, title, and interest to the System to be in City with all rights of ownership including, but not limited to, the right to operate the System or transfer the System to another for operation by it. 17.12 Governing Law. This Franchise shall be deemed to be executed in the State of Minnesota, and shall be governed in all respects, including validity, interpretation and effect, and construed in accordance with, the laws of the State of Minnesota, as applicable to contracts entered into and performed entirely within the State. 17.13 Nonenforcement by City. Grantee shall not be relieved of its obligation to comply with any of the provisions of this Franchise by reason of any failure of the City or to enforce prompt compliance. 17.14 Captions. The paragraph captions and headings in this Franchise are for convenience and reference purposes only and shall not affect in any way the meaning of interpretation of this Franchise. 17.15 Calculation of Time. Where the performance or doing of any act, duty, matter, payment or thing is required hereunder and the period of time or duration for the performance is prescribed and fixed herein, the time shall be computed so as to exclude the first and include the last Day of the prescribed or fixed period or duration of time. When the last Day of the period falls on Saturday, Sunday or a legal holiday that Day shall be omitted from the computation and the next business Day shall be the last Day of the period. 17.16 Survival of Terms. Upon the termination or forfeiture of the Franchise, Grantee shall no longer have the right to occupy the Streets for the purpose of providing Cable Service. However, Grantee's obligations to the City(other than the obligation to provide service to Subscribers) shall survive according to their terms. 17.17 Competitive Equity. If any other Wireline MVPD enters into any agreement with the City to provide multi channel video programming or its equivalent to residents in the City, the City,upon written request of the Grantee, shall permit the Grantee to construct and/or operate its Cable System and provide multi channel video programming or its equivalent to Subscribers 50 3056782v1 in the City under the same agreement as applicable to the new MVPD. Within one hundred twenty(120) Days after the Grantee submits a written request to the City, the Grantee and the City shall enter into an agreement or other appropriate authorization (if necessary) containing the same terms and conditions as are applicable to the new Wireline MVPD. Passed and adopted this day of 201_ ATTEST CITY OF EDEN PRAIRIE, MINNESOTA By: By: Its: City Clerk Its: Mayor ACCEPTED: This Franchise is accepted, and we agree to be bound by its terms and conditions. QWEST BROADBAND SERVICES, INC.,D/B/A CENTURYLINK Date: By: Its: SWORN TO BEFORE ME this day of , 201 . NOTARY PUBLIC 51 3056782v1 Exhibit A Free Cable Service to Public Buildings ANSWER POINT,PUBLIC SAFETY 8080 MITCHELL RD OFC CARNELIAN HOUSE,* 7525 CARNELIAN LN APT. CMCL CENTER,EDEN PRAIRIE FAMILY 8950 EDEN PRAIRIE RD CENTER,EDEN PRAIRIE SENIOR 8950 EDEN PRAIRIE RD CITY HALL,EDEN PRAIRIE 8080 MITCHELL RD OFC CITY OF,EDEN PRAIRIE 7801 MITCHELL RD COMMUNITY CENTER,EDEN PRAI 16700 VALLEY VIEW RD DISPATCH,EDEN PRAIRIE 8080 MITCHELL RD APT COPS FIRE STATION,EDEN PRAIRIE 11800 TECHNOLOGY DR POLICE,EDEN PRAIRIE 7900 MITCHELL RD PUBLIC WORKS,EDEN PRAIRIE 7845 MITCHELL RD SOCS CHATHAM WA,Y 6204 CHATHAM WAY LIBRARY,EDEN PRAIRIE 479 PRAIRIE CENTER DR DISTRICT,EDEN PRA SCHOOL 8100 SCHOOL RD APT FIBER ELEM SCHOOL,OAK POINT INTE 13400 STARING LAKE PKWY ELEM,CEDAR RIDGE 8905 BRAXTON DR ELEMENTARY,EDEN L 12000 ANDERSON LAKES PKWY ELEMENTARY,PRAIRIE VIEW 17255 PETERBORG RD HIGH SCHOOL, EDEN PRAIRIE 17185 VALLEY VIEW RD HIGH SCHOOL,FOREST 13708 HOLLY RD IMMERSION, SPANISH 8100 SCHOOL RD MIDDLE SCHOOL,CENTRAL 8025 SCHOOL RD TECH COLLEGE,HENNEPIN 13100 COLLEGEVIEW RD FIRE STATION #1,EDEN PRAIR 14800 SCENIC HEIGHTS RD FIRE STATION #4,EDEN PRAIR 17920 LINWOOD CT A-1 3056782vI Exhibit B Franchise Fee Payment Worksheet TRADE SECRET— CONFIDENTIAL Month/Year Month/Year Month/Year Total A la Carte Video Services Audio Services Basic Cable Service Installation Charge Bulk Revenue Expanded Basic Cable Service Pay Service Pay-per-view Guide Revenue Franchise Fee Revenue Advertising Revenue Home Shopping Revenue Digital Services Inside Wiring Other Revenue Equipment Rental Processing Fees PEG Fee FCC Fees Bad Debt Late Fees REVENUE Fee Calculated Fee Factor: 5% c-1 3056782v1 Exhibit C Indemnity Agreement INDEMNITY AGREEMENT made this day of , 201_, by and between Qwest Broadband Services, Inc., a Delaware Corporation, party of the first part, hereinafter called"CenturyLink," and the City of Eden Prairie, a Minnesota Municipal Corporation, party of the second part, hereinafter called"City." WITNESSETH: WHEREAS, the City of Eden Prairie has awarded to Qwest Broadband Services, Inc. a franchise for the operation of a cable communications system in the City of Eden Prairie; and WHEREAS, the City has required, as a condition of its award of a cable communications franchise, that it be indemnified with respect to all claims and actions arising from the award of said franchise, NOW THEREFORE, in consideration of the foregoing promises and the mutual promises contained in this agreement and in consideration of entering into a cable television franchise agreement and other good and valuable consideration, receipt of which is hereby acknowledged, CenturyLink hereby agrees, at its sole cost and expense, to fully indemnify, defend and hold harmless the City, its officers, boards, commissions, employees and agents against any and all claims, suits, actions, liabilities and judgments for damages, cost or expense (including,but not limited to, court and appeal costs and reasonable attorneys' fees and disbursements assumed or incurred by the City in connection therewith) arising out of the actions of the City in granting a franchise to CenturyLink. This includes any claims by another franchised cable operator against the City that the terms and conditions of the CenturyLink franchise are less burdensome than another franchise granted by the City or that the CenturyLink Franchise does not satisfy the requirements of applicable federal, state, or local law(s). The indemnification provided for herein shall not extend or apply to any acts of the City constituting a violation or breach by the City of the contractual provisions of the franchise ordinance,unless such acts are the result of a change in applicable law, the order of a court or administrative agency, or are caused by the acts of CenturyLink. The City shall give CenturyLink reasonable notice of the making of any claim or the commencement of any action, suit or other proceeding covered by this agreement. The City shall cooperate with CenturyLink in the defense of any such action, suit or other proceeding at the request of CenturyLink. The City may participate in the defense of a claim, but if CenturyLink provides a defense at CenturyLink's expense then CenturyLink shall not be liable for any attorneys' fees, expenses or other costs that City may incur if it chooses to participate in the defense of a claim,unless and until separate representation is required. If separate representation to fully protect the interests of both parties is or becomes necessary, such as a conflict of interest, in accordance with the Minnesota Rules of Professional Conduct,between the City and the counsel selected by CenturyLink to represent the City, CenturyLink shall pay, from the date such separate representation is required forward, all reasonable expenses incurred by the City in defending itself with regard to any action, suit or proceeding indemnified by CenturyLink. Provided, however, that in the event that such separate representation is or becomes necessary, c-1 3056782v1 and City desires to hire counsel or any other outside experts or consultants and desires CenturyLink to pay those expenses, then City shall be required to obtain CenturyLink's consent to the engagement of such counsel, experts or consultants, such consent not to be unreasonably withheld. Notwithstanding the foregoing, the parties agree that the City may utilize at any time, at its own cost and expense, its own City Attorney or outside counsel with respect to any claim brought by another franchised cable operator as described in this agreement. The provisions of this agreement shall not be construed to constitute an amendment of the cable communications franchise ordinance or any portion thereof, but shall be in addition to and independent of any other similar provisions contained in the cable communications franchise ordinance or any other agreement of the parties hereto. The provisions of this agreement shall not be dependent or conditioned upon the validity of the cable communications franchise ordinance or the validity of any of the procedures or agreements involved in the award or acceptance of the franchise, but shall be and remain a binding obligation of the parties hereto even if the cable communications franchise ordinance or the grant of the franchise is declared null and void in a legal or administrative proceeding. It is the purpose of this agreement to provide maximum indemnification to City under the terms set out herein and, in the event of a dispute as to the meaning of this Indemnity Agreement, it shall be construed, to the greatest extent permitted by law, to provide for the indemnification of the City by CenturyLink. This agreement shall be a binding obligation of and shall inure to the benefit of, the parties hereto and their successor's and assigns, if any. QWEST BROADBAND SERVICES,INC. Dated: , 201_ By: Its: STATE OF LOUISIANA ) ) SS ) The foregoing instrument was acknowledged before me this day of 201_, by , the of Qwest Broadband Services, Inc., a Delaware Corporation, on behalf of the corporation. Notary Public Commission Expires CITY OF EDEN PRAIRIE,MINNESOTA By Its C-2 3056782v1 CenturyLink Competitive Cable Franchise Public Hearing-City of Eden Prairie,MN January 19,2016 Federal Cable Act • One of the stated purposes of the Cable Act is to: "promote competiJlon in cable communications and minimize unnecessary regulation that would impose an undue economic burden on cable systems." See 47 U.S.C.§521(6)-emphasis added z Federal Cable Act • A franchising authority may award one or more franchises within its jurisdiction: "except that a franchising authority may not grant an exclusive franchise and may not unrealeilak&cefuse to award an additlonaLcomaetitive franchise." See 47 U.S.C.§541(a)(1) -emphasis added - codified in the Cable Act as Section 621 ,or.Nor.A N.rrn,lr 3 1 Franchise Negotiations • CenturyLink(CTL)Franchise negotiations • Commission/City Goal • Substantially the same franchise terms for CTL as currently in place for Comcast. • CTL provided markup of Comcast franchise to City - June 18,2015 • Commission and CTL held face-to-face negotiations - July through September • Final franchise terms-October • Commission unanimously approved CTL model franchise • October 28,2015 • CTL Franchise terms are very similar to Comcast franchise Living Units • Franchise references"Living Units" • Households = Living units - a distinct address in the QC network • single family homes • multi-dwelling units • apartment buildings and condominiums • business locations • Qualified Living Units - meets minimum technical qualifications - Generally a minimum of 25 Mbps downstream •••Mars 5ISA.nrft Franchise Term • 5 year franchise term • City has unilateral right to • 5 year extension of term - If triggered- 10 year term - Comcast=10 year term granted in 2015 • Term tied to system build out • Allows the City to consider whether Cable System"substantially constructed" - During Initial 5 year term - If not,franchise may not be renewed •••••Mtn,5 Namrtt 6 2 System Build Out • CTL authorized to provide cable service • Throughout entire City • Within 2 years CTL will serve minimum of - 15%of Living Units in City • A significant portion of CTL Investment - will be targeted to US Census areas with the highest percentage of households below the City's median household income. • Nondiscrimination mandate • Market success requirement • 27.5%of the households capable of receiving Cable Service • Additional fifteen(15%)requirement • Quarterly meetings • Verify compliance with build obligations • Confidential Maps provided by CTL System Build Out • Quarterly meeting— Example:CTL shows • If CTL is capable of serving 60%of households • Actually serving 30%of those households • CTL will agree to serve an 15%of the total households in the City • No later than 2 years after quarterly meeting • Under above Example • A total of 75/of the total households • This additional build-out based on market success continues until every household in the City is served .•.�.IOCFbBnnelr a Mosaic Channel • Displays miniaturized media screens • Related information • For PEG channels • Navigation tool for subscribers - Displays PEG Channels on a single channel - Navigation to a higher channel numbers • CTL will provide all metro PEG channels • To every Member City cable subscriber - Over 150 PEG channels ••.66o66 d Barnett 9 3 If •..MnacS N,irwtt to Mosaic Channel • Public and Educational Channels • Mosaic Channel #26 • Select Channel#8110-educational • Select Channel#8111-public • Government channel • Each member city has its own channel# • Eden Prairie Channel#235 •4••Mo9•bli.11nett tt PEG Channels • CTL direct connection to Edina City Hall for public and educational programming • CTL direct connection to Eden Prairie City Hall for government programming • HD and SD for all PEG channels • Based on subscriber equipment in home • PEG fee of$.60 per subscriber • Matches Comcast • City has right to increase PEG fee • Same increase applicable to both operators +•A Mon Altarn•tl 12 4 Free Service to Public Buildings • CTL to provide free service • Basic and expanded basic service - Up to 3 set-top boxes • Buildings must be Qualified Living Units • CTL won't duplicate Comcast served buildings - City can mandate change from Comcast to CTL Indemnification • CTL to indemnify the City • Same indemnification obligations as Comcast • Added agreement to indemnify City - If Comcast challenges City franchise award to CTL a.•.nw<,.•a.,„«„ 14 Recommendation • Southwest Commission recommends grant of cable franchise to CenturyLink • Commission Resolution 2015-1 • City Council action required: - Approve written findings of fact - Approve CenturyLink cable franchise iJ.�/JSI S Rarnrt! ,5 5 Questions Brian T.Grogan,Esq. Moss&Barnett,A Professional Association 150 South Fifth Street,Suite 1200 Minneapolis,MN 55402 (612)877-5340 phone /(612)877-5031 facsimile E-mail:Brian.Grooan(8lawmoss.com Web site:www,lawmoss,com A%Mon,a H,n Matt 16 6 CITY COUNCIL AGENDA DATE: SECTION: Public Hearing January 19, 2016 DEPARTMENT/DIVISION: ITEM DESCRIPTION: Vacation 15-02 ITEM NO.: Denise Christensen Vacation of a part of the slope easement on IX.C. Doc 1208598 over Tract A, Registered Land Public Works/Engineering Survey No. 1394 Requested Action Move to: • Close the public hearing; and • Adopt the resolution vacating of a part of the slope easement, as dedicated on Torrens Document 1208598 dated December 6, 1976 and recorded on February 8, 1977 with the Hennepin County Registrar of Titles, lying over a part of Tract A, Registered Land Survey No. 1394, Hennepin County, Minnesota. Synopsis The owners of the Park Nicollet Clinic requested the vacation of a part of the slope easement over a portion of the Clinic lot to accommodate an addition to their existing building. Background Information The part of the slope easement area to be vacated was originally dedicated on Torrens Document No. 1208598 and given to The City of Eden Prairie by SLP Corporation on December 6, 1976. The part of the slope easement to be vacated is no longer needed by the City. Attachments • Resolution • Location Map • Site Plan • Published Notice • Notification List CITY OF EDEN PRAIRIE HENNEPIN COUNTY, MINNESOTA RESOLUTION NO. 2016- NOTICE OF VACATION OF A PART OF THE SLOPE EASEMENT,AS DEDICATED ON TORRENS DOCUMENT 1208598, LYING OVER A PART OF TRACT A, REGISTERED LAND SURVEY NO. 1394, HENNEPIN COUNTY, MINNESOTA VACATION 15-02 WHEREAS, the City of Eden Prairie has a certain Slope Easement as dedicated on Torrens Document 1208598 dated December 6, 1976 and recorded on February 8, 1977 with the Hennepin County Registrar of Titles, lying over a part of Tract A, Registered Land Survey No. 1394, Hennepin County, Minnesota, described as follows: That part of Tract A, REGISTERED LAND SURVEY NO. 1394, according to the recorded plat thereof, Hennepin County, Minnesota,which lies northwesterly of the following described line: From the point of termination of "Line 2" described below, run southeasterly at right angles to said "Line 2" to an intersection with the southeasterly right of way line of Trunk Highway No. 169.as now located and established; thence run northeasterly to a point, distant 155 feet southeasterly (measured at right angles) of a point on said "Line 2", distant 310 feet northeasterly of its point of termination; thence run northeasterly to a point, distant 100 feet southeasterly (measured at right angles) of a point on said "Line 2", distant 710 feet northeasterly of its point of termination and said line there terminating. "Line 2" is described as beginning at a point on the east and west quarter line of Section 14, Township 116 North, Range 22 West, Hennepin County, Minnesota, distant 2557.59 feet west of the east quarter corner thereof; thence run southwesterly at an angle of 45 degrees 57 minutes 00 seconds from said east and west quarter line (measured from west to south) for 251.40 feet; thence deflect to the left at an angle of 07 degrees 34 minutes 00 seconds for 1220.86 feet; thence deflect to the right on a tangential curve having a radius of 1909.86 feet and a delta angle of 14 degrees 28 minutes 44 seconds for 482.63 feet; thence on tangent to said curve for 395.24 feet and said "Line 2" there terminating. WHEREAS, a Public Hearing was held on January 19, 2016, after due notice was given to affected property owners and published in accordance with M.S.A. 412.851; and WHEREAS, the Council has been advised by City Staff that the proposed vacation of the above described Slope Easement has no relationship to the comprehensive municipal plan; and WHEREAS, it has been determined that the said Slope Easement are not necessary and have no interest to the public, therefore, should be vacated. NOW, THEREFORE, BE IT RESOLVED by the Eden Prairie City Council as follows: 1. Said Slope Easement described above are hereby vacated. 2. The City Clerk shall prepare a Notice of Completion of Proceedings in accordance with M.S.A. 412.851. ADOPTED by the Eden Prairie City Council on January 19, 2016. Nancy Tyra-Lukens, Mayor ATTEST: Kathleen Porta, City Clerk ' VI JApr ANAG�P� PLAZA C / oDRf . 5 0°�21 TECHNOLOGY DR. Lake ° ° \..4,_ 1 11 idle wild P<,, 15 14 LEONA RD. T116N R22W O i z------------ �� 11 O o W. 78th ST.\\AG\'ETREE LA 6 Ili ci aw_,: 1 0 REG,ON,, w_GAO n L CENTER en 23 ?4' ♦ EDEN PRAIRIE A 0 ��s�, 0 CENTER I. Rq,'Pi liabb,,,oi � Q� SITE 4� O �gMeR/pc , �`'PLEMO-} O 0 'PO DR. ? -1 4 /NIA �o�4P OEM 1Q f PRAIRIE \ 67. oa o �. G , MEDCO97 68. �� M NON CT. `O Q PRIMROSE O � FNk BLVD. = R DR• CARRIA f r g LA WOOD � n y 0 OiC'y CT. 14E 1 NOLI CORKS TR• �O Cyr°IFF ( ✓O), �0 W RD. 2 • 28.CIR. pklyy J MAR/G 4, PORCUPINE C/R, r Zt O 29 Q 3 p a 11- ?'<� 03 ��°WFoo_r� °q�PtiFEden a �� \ ��h�� . 30.S J � Nv N �F,�c,�A'POV�v y/RF Gp% EN LA. vDSO .p0o c►c Lake FR o '� cIR.09 �� / �0 0 y�IA �' m _ �_ ANDERSON 2 \c% ANDER %TR. 82. •/ / VJ' -R- . Q L 83. o �4% CO K 5 cc Q �, �kFs J �� z �' }cp. /� , ��' S. �_ w ,. o I W TER ORD o e .�' 61 a DARNEL ce RD. Y Neill v> Q HARVARD AVE. PRESERVE BLVD.t La/fa VAC 15-02 NORTH LOCATION MAP •\•\ /\\\ \O \ • N \ ` -- Seee ictontOI For 11 <2 �`Q \\Q \`1 / , 'o N 0\ 0\ °' /oo ao/ O°°. � oo . . 0 100 /\90� - . 11KV, 5 , SCALE IN FEET \v2\•• \k��/ / / D / 0 / h / C./..:/ \e*/ cifi c ti Q \�0$5 $�h Ova %s5 ' •••: ' : / < ;- ., i; \ fie et0°cps C\ �/ / \♦ '•...s n.�, i >C` �0$ / / \oe6 ` ,o v.....4444• `.v. oozy. \ p► ,0t ��` < -c ^\ < \\ / / / Sp\ � �:WM y' • oh'r ei I`�-w PertDoc.DNo.f Slope08598t \T \- `. �� ;;` eVo \� \ I ; , (To Be Vacated) ``T 1 - . \ • Ns.,• ••• e A -• •, n / I�\ I I I / i V ♦ i , \ • • I I If / 1 / ♦ / \ i L1 � � � \ e - / / \ / /- ` i Tract A 1 <� ' <' -�' / � � ` \ S. I 1 It �'I ♦ \% ♦ Imo \♦ \ \ ♦ / ♦ I I ^ ` < 0 V ( ` .. 1 `< / ' \ v ♦ I hereby certify that this survey , plan or report was prepared by me or under my direct supervision and that I am a duly Licensed Land Surveyor under the laws of the State of Minnesota . •r ' a EY ...a:a 7 f X November 24, 2015 Richard L . Licht - PLS License No . 26724 Date Loucks Project No . 15 - 123A Sheet 2 of 2 VACATION 15-02 NOTICE OF VACATION OF A PART OF THE SLOPE EASEMENT,AS DEDICATED ON TORRENS DOCUMENT 1208598, LYING OVER A PART OF TRACT A, REGISTERED LAND SURVEY NO. 1394, HENNEPIN COUNTY, MINNESOTA Notice is hereby given that a public hearing will be held before the Eden Prairie City Council at the Eden Prairie City Hall, 8080 Mitchell Road, Eden Prairie, Minnesota, on January 19, 2016 at 7:00 p.m. to hear all persons present upon the proposed vacation of a part of the slope easement, as dedicated on Torrens Document 1208598 dated December 6, 1976 and recorded on February 8, 1977 with the Hennepin County Registrar of Titles, lying over a part of Tract A, Registered Land Survey No. 1394, Hennepin County, Minnesota, described as follows: That part of Tract A, REGISTERED LAND SURVEY NO. 1394, according to the recorded plat thereof, Hennepin County, Minnesota, which lies northwesterly of the following described line: From the point of termination of "Line 2" described below, run southeasterly at right angles to said "Line 2" to an intersection with the southeasterly right of way line of Trunk Highway No. 169.as now located and established; thence run northeasterly to a point, distant 155 feet southeasterly (measured at right angles) of a point on said "Line 2", distant 310 feet northeasterly of its point of termination; thence run northeasterly to a point, distant 100 feet southeasterly (measured at right angles) of a point on said "Line 2", distant 710 feet northeasterly of its point of termination and said line there terminating. "Line 2" is described as beginning at a point on the east and west quarter line of Section 14, Township 116 North, Range 22 West, Hennepin County, Minnesota, distant 2557.59 feet west of the east quarter corner thereof; thence run southwesterly at an angle of 45 degrees 57 minutes 00 seconds from said east and west quarter line (measured from west to south) for 251.40 feet; thence deflect to the left at an angle of 07 degrees 34 minutes 00 seconds for 1220.86 feet; thence deflect to the right on a tangential curve having a radius of 1909.86 feet and a delta angle of 14 degrees 28 minutes 44 seconds for 482.63 feet; thence on tangent to said curve for 395.24 feet and said "Line 2"there terminating. By Order of the City Council Published in the Eden Prairie News on December 31, 2016 NOTIFICATION LIST VACATION REQUEST 15-02 A copy of the Public Hearing Notice has been sent to owners of the following parcels: 1411622330031 1411622340015 CITY COUNCIL AGENDA DATE: SECTION: Appointments January 19, 2016 DEPARTMENT/DIVISION: ITEM DESCRIPTION: ITEM NO.: Community Development/ Appointments to 2016 Board of Appeal and XIII.A. Assessing Equalization(BAE) Requested Action Move to: Appoint to the Board of Appeal and Equalization Lyndon Moquist,Annette O'Connor,Todd L.Walker,Nate Thompson and Kristin Rial for the period of March 1, 2016 through May 31, 2016, or until the Board of Appeal and Equalization completes its work. Synopsis The proposed members for Council approval are Eden Prairie residents and experienced real estate professionals with extensive knowledge of the Southwest metro area. Lyndon Moquist of Edina Realty is involved in the sale of residential properties in the southwest metro area and manages the Eden Prairie office of Edina Realty. Annette O'Connor of Coldwell Banker Burnet Realty is involved in the sale of residential properties in the southwest metro. Todd Walker of Coldwell Banker Burnet Realty is involved in the sale of residential properties in the southwest metro. Nate Thompson of Edina Realty is involved in the sale of residential properties in the southwest metro. Kristin Rial of Edina Realty is involved in the sale of residential properties in the southwest metro. Background From 1992 through 2015,the City has appointed a special Board of Appeal and Equalization(also formerly named the Board of Review). The members are citizen volunteers that are active and knowledgeable,with extensive experience in the real estate market. The members are recruited by the City Manager and City Assessor and appointed annually with confirmation by the City Council. The City pays the members a per diem payment of$50 for all required training sessions and Board meetings. In 2003,the Minnesota legislature passed a law requiring members of Boards of Appeal and Equalization to attend a training session, developed by the Minnesota Department of Revenue, at least once every four years. The Minnesota Department of Revenue also requires that the City document by February I St of the year of the meeting that at least one member of the Board has been trained within the last four years. The law also requires that a member of the Board of Appeal and Equalization that attended training must be in attendance at the meeting. Lyndon Moquist attended training November,2013 and his training is valid to July 1,2017. Annette O'Connor attended training in March,2013 and her training is valid to July 1,2016. We expect that Todd Walker,Nate Thompson and Kristin Rial will complete the new on-line training session prior to the Local Board of Appeal and Equalization meeting.